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Insensitive Employer to pay $450k to Employee Fired After Panic Attack

April 20, 2022 | Employment Law

Getting stressed out at work happens to everyone, and it’s perfectly normal.  But stress that is persistent, irrational, and overwhelming and impairs daily functioning may indicate an anxiety disorder.  Employing stress management skills can make work a reasonable place to function without excessive fear of unplanned panic or anxiety.  It’s best to be open with a trusted co-worker and/or someone on the company’s management team.  As people gain a better understanding of anxiety and panic they find it easier to assist with accommodations. But that isn’t always enough to protect oneself from a panic attack.  And it certainly isn’t required.  The Americans with Disabilities Act (ADA) protects employees with anxiety and panic disorders.  Companies with more than 15 employees are covered by the ADA. Employers may not ask questions about disabilities, medical conditions or accommodations.  They may ask questions about specific tasks to be performed in the role and they can make assumptions based on your interview and supporting documents.

Kevin Berling was hired by Gravity Diagnostics in October 2018.  He knew he could perform the tasks required as a lab technician.  He was open with his office manager.  Five days before his birthday in 2019 he reminded the manager about his anxiety disorder and asked that a celebration not be arranged for his birthday.  People who live successfully with panic disorder can identify some things that set off their panic attacks.  Being the toast of an office birthday party is one of them for this particular employee.  On August 7th the office prepared a birthday celebration for Kevin at lunchtime triggering a panic attack. He had to spend the lunch hour in his car using his practiced techniques to recover from the attack.  The office manager had “forgotten” Kevin’s request to be excluded from the birthday lunch rotation.

To make matters worse Kevin was called into a meeting the next day and confronted critically about the previous day.  “Managers started giving him a hard time for his response to the birthday celebrations,” according to Berling’s attorney, Tony Bucher.  “They actually accused him of stealing his co-workers’ joy.” The meeting triggered another panic attack.  Kevin was sent home for the remainder of the 8th and for August 9th as well.

Gravity Diagnostics fired Kevin Berling.

He hired an attorney and filed a complaint against Gravity Diagnostics the following month.

An employee may not be fired for requesting reasonable accommodations; and certainly not subjected to a confrontational, critical interview examining the employee’s personal stress management skills of which this employer clearly has no understanding.  We live in a world of information.  Employers have ready access to the tools to provide a work environment that suits all employees with mostly subtle accommodations. 

According to FindLaw, a resource center for legal professionals, “Courts have recognized that depression, anxiety disorders and certain ‘[d]epressive disorders . . . fall under the category of emotional illness.’ Gaul v. AT & T, Inc., 955 F. Supp. 346, 350 (D.N.J. 1997) (employee diagnosed with a ‘depression-related illness and stress disorder’ disabled under ADA). The ADA will cover those applicants and employees who have mental impairments, so long as they are qualified for the job either with or without accommodations.” 

This past March a jury deliberated only 90 minutes before finding in Kevin’s favor, unanimously concluding he had a disability as defined in their instructions, that he could perform the essential functions of his job and that he suffered an adverse employment action because of that disability.  The jury awarded Kevin Berling $450k plus costs and attorneys’ fees.  $300k is for past present and future mental pain and suffering, mental anguish, embarrassment, humiliation, mortification and loss of self-esteem.