COVINGTON, Ky. — Kevin Berling had a simple request: He didn’t want Gravity Diagnostics, his former employer, to throw him a birthday party.
Berling has an anxiety disorder, said his attorney, Tony Bucher, and his birthday is a source of stress, so his client went to the person at the company who throws the parties and asked them not to.
“The person who was responsible for the birthday parties who he talked to flat out forgot about his request,” Bucher said. “She didn’t do it to be mean. She said she would accommodate it and she just forgot.”
The party was thrown anyway, and Berling began to have a panic attack. He went to his car, according to Bucher, and worked through some breathing techniques. He then went back upstairs and finished his workday.
The following day, Bucher said, Berling was called into a conference room to have a discussion about the party.
“According to my client, she started reading him the riot act and accused him of stealing other coworkers’ joy,” Bucher said.
He started to have another panic attack, Bucher said.
“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 the two employees in the conference room asked Berling to stop, and when he didn’t, they walked out. Once the panic attack had subsided, Bucher said, Berling walked out of the conference room and was asked to leave the building. He was let go a couple of days later.
“They way [the Gravity Diagnostics employees] say it, they believed he was enraged and possibly about to get violent,” Bucher said.
Berling has never demonstrated any violence, Bucher said, and someone who is suffering a panic attack becomes almost paralyzed with fear; they don’t often lash out.
“Basically what the argument was is he was fired for having a panic attack,” Bucher said. “They made assumptions that he was dangerous based off of his disability and not off of any evidence that he was violent.”
If he had made violent gestures, Bucher said, Gravity Diagnostics would have had grounds to fire him, but he didn’t do anything threatening.
A jury awarded Berling $450,000. $300,000 was for emotional stress; $120,000 was for back wages and benefits, and $30,000 was for front pay.
“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,” Bucher said.
With the company’s rapid growth during COVID-19, not only has the company’s name become much more prominent, Bucher said, but the company has grown four to five fold since Berling was terminated.
“Based on his employment records, where would he be?” Bucher said. “There are people whose income has gone up at least 50 percent during that time. He lost a nice opportunity with that company.”
Gravity Diagnostics founder and COO Julie Brazil said that the verdict in this case does not represent facts or the company’s employer rights by law.
“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,” Brazil said.
With ever-increasing incidents of workplace violence, Brazil said, the verdict sets a dangerous precedent for employers and employees that unless physical violence occurs, workplace violence is acceptable.
“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,” Brazil said. “My employees were the victims in this case, not the plaintiff.”
Brazil said the company is challenging the verdict based on “discovery of juror misconduct violating trial judge’s orders, and then an appeal if necessary.”
