In the end, no one was celebrating.
A jury ordered Gravity Diagnostics, a medical laboratory located in Covington, Kentucky, to pay compensatory damages of $450,000 for throwing a birthday party for an employee, Kevin Berling, who had expressly asked them not to do so, according to WLKY-TV.
The company had a tradition of throwing employees birthday parties on their lunch breaks.
A few days before his August 2019 birthday, Berling, who suffers from panic attacks, quietly approached the office manager. Explaining his condition, he said that “being the center of attention” would trigger an attack and asked that they not throw a birthday party for him.
On his way to lunch on the day of his birthday, he learned that they’d planned a party for him anyway. Panicked, he immediately ran out to his car where he remained for the lunch hour.
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He sent a text message to the manager to ask why she had disregarded his request.
WLKY-TV reported that the following day, Berling was called into a meeting with the office manager, where the manager “confronted and criticized” him over his reaction the previous day.
Berling’s attorney Tony Bucher told Link NKY, “According to my client, she started reading him the riot act and accused him of stealing other coworkers’ joy.”
This sparked another panic attack.
Do you agree with the jury’s decision?
“At this point he starts employing other coping techniques that he’s worked on for years with his therapist,” Bucher said. “The way he described it is he started hugging himself and asked them to please stop.”
Bucher said they asked Berling to stop and left the room. After Berling’s panic attack had ended, he left the room and was told to leave the building, according to the report.
“They way [the Gravity Diagnostics employees] say it, they believed he was enraged and possibly about to get violent,” Bucher told Link NKY.
Over the weekend, he was informed he’d been fired “because of the events of the previous week,” according to WLKY-TV.
“Basically what the argument was is he was fired for having a panic attack,” Bucher explained, Link NKY reported. “They made assumptions that he was dangerous based off of his disability and not off of any evidence that he was violent.”
He said, “I think another compelling piece is my client’s therapist testified at trial and talked about how anytime he sees the name of the company it gives him another panic attack.”
Berling sued the company for disability discrimination and retaliation. According to the WLKY report, the lawsuit argued that “because Gravity Diagnostics didn’t accommodate his anxiety disorder, the birthday party and the events afterward caused him ‘to suffer from a loss of income and benefits and emotional distress and mental anxiety.’”
He was awarded a total of $450,000 in damages by a Kenton County Circuit Court jury, $300,000 for emotional distress and $150,000 for lost income.
Gravity Diagnostics founder and COO Julie Brazil disagrees with the verdict. She told Link NKY, “My employees deescalated the situation to get the plaintiff out of the building as quickly as possible while removing his access to the building, alerting me and sending out security reminders to ensure he could not access the building, which is exactly what they were supposed to do.”
“As an employer who puts our employee safety first, we have a zero-tolerance policy and we stand by our decision to terminate the plaintiff for his violation of our workplace violence policy,” she added. “My employees were the victims in this case, not the plaintiff.”
She said the company plans to challenge the jury’s decision due to “discovery of juror misconduct violating trial judge’s orders, and then an appeal if necessary.”
I am not a lawyer, but Berling has a documented history of panic attacks, a disabling condition by anyone’s standards. He’d made a simple and reasonable request ahead of his birthday, and it was not honored.
According to Bucher, “The person [the office manager] who was responsible for the birthday parties who he talked to flat out forgot about his request. She didn’t do it to be mean. She said she would accommodate it, and she just forgot.”
A simple apology from the office manager would have ended it.
Watching a man hug himself may have appeared a little strange to her employees, but their “belief” that Berling was about to become violent smacks of insincerity.
Good luck with that appeal, Julie.
