On March 31, 2022, a Kentucky jury unanimously awarded $450,000 to an employee, who was terminated following two panic attacks the employee suffered at work. The jury concluded the employee’s anxiety disorder was a disability and that the employee suffered an adverse action because of his disability.

Brief Background

In Berling v. Gravity Diagnostics, LLC, No. 19-CI-01631 (Kenton County, Kentucky), the employee told his office manager a few days before his birthday that he did not want the office to host a birthday celebration for him due to his anxiety disorder; however, the office manager inadvertently did not relay the employee’s request to the birthday party coordinator. On the day of the employee’s birthday, he discovered a birthday party had been arranged for him in the break room, which triggered a panic attack that forced the employee to leave the office suddenly. The next day, the employee’s supervisor and director of business operations confronted the employee about his reaction to the birthday party, where the employee began suffering from another panic attack and was sent home from work. Three days later, the employer terminated the employee, citing concerns that other employees had been frightened for their safety when the employee suffered the panic attacks.

The employee filed a disability discrimination lawsuit against his employer under KRS § 344.040, which prohibits employers from discharging an employee because the person is a qualified individual with a disability. The employee alleged, among other things, that his employer failed to reasonably accommodate his request to abstain from their usual practice of having birthday celebrations, and failed to reasonably accommodate his request that his supervisor stop confronting him about his reaction to the birthday celebration. The employee also alleged that his requests were ignored and that he was terminated on the basis of his disability. The employer argued that the employee could not demonstrate that he had a disability that substantially limited a major life activity, and that they had a legitimate, nondiscriminatory reason for his discharge (i.e., workplace concerns for other employees’ safety).

Jury Verdict and Key Takeaways

After a two-day trial, the jury returned the verdict in favor of the employee, finding that the employee had a defined disability; that he was able to perform the essential functions of his job with or without reasonable accommodations; and that he suffered an adverse employment action because of his disability. The jury awarded $450,000, which included $120,000 in lost wages and benefits; $30,000 in future lost wages and benefits; and $300,000 for past, present, and future mental pain and anguish. The employee was also entitled to recover attorneys’ fees and costs.

With an increase focus on mental health, employers may want to consider reviewing their policies and procedures to ensure there is enough coverage for mental health claims. Employers may also want to consider reviewing their training materials and processes for filing a claim to ensure compliance with all applicable federal and state laws.

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Photo of Nicole Eichberger Nicole Eichberger

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents…

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.

Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.

In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.

She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.

Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.

Photo of Atoyia Harris Atoyia Harris

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result…

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result for her clients. She has successfully defended matters on a wide variety of issues.

Atoyia advises clients and conducts investigations and trainings on issues related to discrimination, harassment, and retaliation. Her practice also includes counseling clients on reductions-in-force, Covid-19 related matters, issues arising out of social movements including Black Lives Matter and #MeToo, and other sensitive employment issues.

Atoyia is co-chair of the Firm’s Black Lawyers Affinity Group, serves as a member of the Firm’s Associate Council, and is on the Proskauer Women’s Alliance Steering Committee.

Active in the New Orleans legal community, Atoyia is a member of the Young Lawyers Board for the Federal Bar Association’s New Orleans Chapter and other organizations. She is also a member of the national Defense Research Institute’s Membership Committee and Diversity and Inclusion Planning Committee.

Atoyia received her J.D. with an International Law Certification from Loyola University New Orleans College of Law. Atoyia served as the Moot Court Selection Chair and staff member of the Loyola Law and Technology Journal. While in law school, Atoyia interned as a law clerk for the Honorable Jay C. Zainey at the United States District Court for the Eastern District of Louisiana and the Honorable Robin Giarrusso at the Orleans Parish Civil District Court. Atoyia was also a member of the award-wining Robert F. Wagner Labor and Employment Moot Court Team.

Prior to law school, Atoyia received her Bachelor of Music in Industry Studies with emphasis in classical piano from Loyola University New Orleans and was member of the Loyola University women’s basketball team.

Photo of E. Sydney Cone E. Sydney Cone

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and…

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and Wohl, LLP, focusing on white collar criminal and civil litigation.