A worker didn't want a birthday party. His company held one anyway. Now it owes him $450K

LOUISVILLE, Ky. — The next time you throw a birthday party for a colleague at work, make sure they want their birthday celebrated.

A Northern Kentucky medical testing company learned that lesson the hard way. 

In 2019, employee Kevin Berling asked the office manager for Gravity Diagnostics in Covington, Kentucky, not to hold a birthday celebration for him. Being the center of attention caused him immense stress, Berling said.

But the company ignored his request, and Berling suffered a panic attack. 

The next day, his supervisor chastised him for "stealing his co-workers'" joy and "being a little girl."

Berling had another panic attack so severe that he closed his eyes, clenched his fist and turned red.

His unnerved colleagues felt threatened, and the company fired him.

Berling sued, alleging the company discriminated against him based on a disability and retaliated against him for demanding a reasonable accommodation to it. 

After a two-day trial and 90 minutes of deliberation, a Kenton Circuit Court jury on March 31 agreed with Berling, awarding him $450,000 in damages, including $300,000 for emotional distress and $150,000 in lost wages.

The order making the jury award official was entered April 5.

The verdict was first reported on the Facebook page of the Kentucky Trial Court Review, a publication for trial lawyers and insurance adjusters. 

Attorney Tony Bucher, who represented Berling, told The Courier Journal that once the jury got to meet his client in the courtroom, they realized the company’s claim that he posed a threat was far-fetched. 

Gravity Diagnostics' outside counsel, Katherine Kennedy, said it continues to deny liability and is pursuing its post-trial options.

Julie Brazil, the company's founder and chief operating officer, said in an email that "with ever-increasing incidents of workplace violence, this verdict sets a very dangerous precedent for employers and most importantly employees that unless physical violence actually occurs, workplace violence is acceptable."

She said that her employees, rather than the plaintiff, were the victims in the case.

And she said Blackburn "100 percent" disputes the comments Berling ascribed to her.

The case was set in motion on Aug. 2, 2019, when Berling, a Bellarmine University graduate who had begun working at the company the year before sorting lab samples, asked Gravity’s chief of staff, Allison Wimmers, not to hold its traditional birthday celebration for him.

He told her he associated it with bad childhood memories surrounding his parents’ divorce. 

But Wimmers forgot to pass along his request, the company admitted, and when Berling arrived at work five days later, his colleagues wished him “Happy Birthday” and at lunchtime, in the breakroom, he was greeted with a banner and a cake. 

Berling grabbed his lunch and went to his car, where he had a panic attack, he said. Though he returned to work, he emailed Wimmers to say he was upset his wishes had been disregarded. 

Coworkers reported Berling had been “sober-faced” and quiet, and the next day, his supervisor, Amy Blackburn, summoned him to a meeting to see if he was OK. 

He explained he had suffered a panic attack because of the birthday celebration. 

About one minute into the meeting, according to the company’s account, Berling became “very red,” then closed his eyes, clenched his fist and “commanded silence, while shaking.” 

Blackburn and another supervisor thought Berling was going to hit them, Kennedy said in court papers. 

Blackburn and the company’s operations director were so concerned about Berling's behavior they took away his key and notified security he wasn’t allowed to return, according to the company’s account. 

The company’s chief operating officer, Julie Brazil, fired Berling, citing its zero-tolerance policy for employees making other workers feel “physically threatened” and unsafe in the workplace. 

But Berling and his lawyer offered a different account of the meeting. 

They said Blackburn yelled at him for having a panic attack the day before, telling him to “get over yourself” and chastised him for acting like a “little girl.” 

He said that triggered a second panic attack. He said he was able to calm himself but was sent home for making supervisors feel “uncomfortable,” Bucher wrote in a pleading. 

Berling was first diagnosed with an anxiety disorder when he was 17 years old and more recently with panic disorder, according to the pleading. 

While he didn’t disclose that at work, Berling did tell supervisors he couldn’t work overtime Wednesdays because of therapy sessions. 

In his lawsuit, he accused the company of violating the Kentucky Civil Rights Act by firing him on account of his disability and failing to accommodate his request to call off the birthday celebration. 

The company claimed he failed to prove he had a legitimate disability, and even if he had, it had a non-discriminatory reason for firing him — workplace safety.

But Bucher said Berling’s therapist, testifying at trial, confirmed his diagnosis and the impact that the "company’s treatment had on him.” 

And the jury unanimously found he suffered from a disability and from an “adverse employment action” because of it. 

Gravity Diagnostics says on its website it is a state-of-the-art accredited laboratory licensed in all 50 states and serves more than 1,000 customers from small private practices to universities to Fortune 500 companies. It claims to have processed over 3 million COVID-19 samples.

Follow Andrew Wolfson on Twitter: @adwolfson.