Berling - Defendant Gravity Diagnostics' Motion For Summary Judgment Filed 8-19-21

COMMONWEALTH OF KENTUCKY
0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000001 of 000099

KENTON CIRCUIT COURT
CIVIL ACTION NO. 19-CI-1631
ELECTRONICALLY FILED
KEVIN BERLING PLAINTIFF
v.
GRAVITY DIAGNOSTICS, LLC DEFENDANT
MOTION FOR SUMMARY JUDGMENT
Defendant, Gravity Diagnostics, LLC, by counsel, pursuant to CR 56, moves the Court for
an Entry of Summary Judgment on all of Plaintiff’s claims. A Memorandum in Support and
Proposed Order accompany this Motion.
Respectfully submitted,
/s/ Katherine L. Kennedy____________________

Katherine L. Kennedy (92606)
LEWIS, BRISBOIS, BISGAARD & SMITH
2333 Alexandria Drive
Lexington, KY 40504
kate.kennedy@lewisbrisbois.com
Phone: (859) 663-9830
Fax: (859) 663-9829
Attorney for Defendant
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MEMORANDUM IN SUPPORT

I. INTRODUCTION
This lawsuit involves allegations of disability discrimination and retaliation. Plaintiff,
Kevin Berling (“Plaintiff”), is a former employee of Gravity Diagnostics, LLC. Gravity
Diagnostics provides laboratory testing in various areas, most recently COVID-19 testing.
Plaintiff was terminated from Gravity Diagnostics in August 2019 for making his co-workers feel
physically threatened and unsafe in the workplace.
Plaintiff was reportedly diagnosed with anxiety disorder in 2009, near the time his parents
divorced. (See Ex. A, Plaintiff Dep. at 21:3-8.) Plaintiff testified that in connection with his
anxiety, he experiences panic attacks. Id. at 24:10. Prior to his termination from Gravity
Diagnostics, Plaintiff experienced one or two panic attacks a year. Id. at 24:19-20. During these
attacks, he begins to hyperventilate, shake, and cry. Id. at 27:18-19. The attacks last one or two
minutes. Id. at 27:23-24. If Plaintiff has a panic attack in a public setting, he will remove himself
from the situation the best he can. Id. at 28:14-15. Plaintiff’s panic attacks are reportedly triggered
by celebrating his birthday (id. at 25:19-20); however, he has been able to celebrate his birthday
with family members. Id. at 57:9-11.
Despite his anxiety, after high school, Plaintiff attended Bellarmine University and
graduated with a Bachelor of Arts Degree in Biology in 2015. Id. at 8:3-5. After graduation,
Plaintiff worked a number of jobs before eventually accepting a job with Gravity Diagnostics in
October 2018. Id. at 18:21. Since his departure from Gravity, Plaintiff has returned to school to
obtain a degree in neurobiology and is currently employed as a student worker at Northern

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Kentucky University. Id. at 8:10; 14:15. Plaintiff’s anxiety has never affected his ability to hold
a job, or complete school work.
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A. Plaintiff’s Employment at Gravity Diagnostics

Plaintiff was hired at Gravity Diagnostics in October 2018 as an Accessioner. Id. at 16:2-
3; 34:14-15. An Accessioner is tasked with organizing or sorting different laboratory samples and
entering data into a computer system. Id. at 35:12-19. Plaintiff’s work station was positioned with
six other Accessioners in a common area. Id. at 36:3-25. Occasionally, Plaintiff would perform
additional job duties as well. Id. at 38:20-21. Throughout his tenure at Gravity Diagnostics,
Plaintiff never received a negative review, nor was he disciplined. Id. at 43:16-20; 45:3-5. He
was also never reprimanded for any behavioral issues. Id. at 74:2.
Prior to August 2019, Plaintiff had never requested an accommodation from Gravity
Diagnostics. Id. at 89:12. He never specifically told anyone at Gravity he has anxiety. Id. at
55:10-11. He had never had a panic attack at Gravity. Id. 54:19-23. In fact, he never felt the need
to tell anyone at Gravity that a certain situation could lead to a panic attack. See id. at 54:24-25;
55:1-3.
B. Plaintiff’s Birthday – August 7, 2019
In 2019, employees at Gravity Diagnostics typically celebrated their co-workers’ birthdays.
Id. at 45:5-9. An employee’s birthday would be placed on a calendar in the breakroom. Id. at
45:17-19. A cake or dessert would be purchased for all employees to share. Id. at 24:1-4. A
banner and balloons were hung as decorations in the breakroom. (See Ex. A, Plaintiff Dep. at
51:4-6; See Ex. C, Blackburn Dep. at 45:22-2.) In addition, one person would purchase a birthday
card for the other employees to sign. (Ex. C, Amy Blackburn Dep. at 49:15.) Employees would
not sing “Happy Birthday” in the breakroom, but the Accessioner Team would extend birthday
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wishes to their co-worker when he/she arrived at work, and sing “Happy Birthday.” Id. at 50:3-
15.
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On the Friday prior to his birthday, Plaintiff asked Gravity’s Chief of Staff Allison

Wimmers to have a short meeting. Id. at 52:15-16. Plaintiff told Ms. Wimmers that his birthday
was coming up and he would prefer not to celebrate it because he associated his birthday with bad
memories surrounding his parents’ divorce. (See Ex. D, Wimmers Dep. at 26:14-16.) Ms.
Wimmers asked if there was anything she could personally do for him, and he declined. Id. at
26:16-23. Plaintiff did not disclose to Ms. Wimmers that celebrating his birthday could cause a
panic attack. Id. at 29:10-12.
The meeting between Plaintiff and Ms. Wimmers occurred near the end of the workday on
Friday. Ms. Wimmers inadvertently forgot to relay Plaintiff’s message to Lauren Finn, who
coordinated the birthday celebrations. Id. at 28:8-9. The following week was Plaintiff’s birthday;
however, Ms. Wimmers was working out of town. Id. at 29:21-25.
When Plaintiff arrived at work on August 7, 2019, his fellow Accessioners wished him,
“Happy birthday.” (See Ex. A, Plaintiff Dep. at 58:2-4.) This greeting put Plaintiff “a little on
edge.” Id. at 58:4. However, Plaintiff went to the laboratory to perform his typical work duties
until lunchtime. Id. at 58: 5-6.
At lunchtime, Plaintiff entered the breakroom where he observed a birthday banner and he
was again wished, “Happy birthday,” by co-workers. Id. at 58:10-12. His co-workers started to
begin the birthday celebration, but Plaintiff quickly grabbed his lunch from the refrigerator, went
to his car, and allegedly had a panic attack. Id. at 58:12-14. Plaintiff was in the breakroom for
less than 30 seconds. Id. at 59:15. He stayed in his car for 45 minutes, but then eventually returned
to work. Id. at 58:24-25; 59:4-6, 23. There was no further discussion regarding his birthday the
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rest of the day. Id. at 59:11. He did not disclose to his co-workers or supervisor that he had a
panic attack earlier, and kept to himself the rest of the day and listened to music on headphones.
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Id. at 60:2-5. He advised Allison Wimmers, who was still out of town, via e-mail that he was “a

little upset that there were birthday things around.” (See Ex. D, Wimmers Dep., at 31.)
The following day, Plaintiff sent a message to Allison Wimmers requesting a discussion
when she returned to the office. Id. at 62:19-24. Ms. Wimmers was still in West Virginia and
advised Plaintiff’s supervisor Amy Blackburn of Plaintiff’s request. (See Ex. C, Blackburn Dep.
at 56:3-8.) Ms. Wimmers also advised Ms. Blackburn that she forgot to notify Lauren Finn that
Plaintiff did not want his birthday celebrated. Id. at 57:10-12. In addition, other employees told
Ms. Blackburn that Plaintiff was sober-faced, quiet, and they were concerned about his behavior.
Id. at 52:6-25; 53:1-22. As a result, Ms. Blackburn requested a meeting with Plaintiff to discuss
his behavior and to see if he was okay. Id. at 54:22-25; 55:1-3.
Ms. Blackburn called Plaintiff into a small conference room. Id. at 60:15-17; 65:16-18.
Gravity’s Director of Business Operations, Ted Knauf, also attended the meeting. Id. at 61:8-11;
Ex. G, Affidavit of Ted Knauf. Ms. Blackburn said to Plaintiff that she knew he was upset and
asked him what was going on. Id. at at 62:20-23. Plaintiff explained that he had issues with
something that had occurred on his birthday. Id. at 62:25; 63:1-2. He told Ms. Blackburn that the
day before, he felt like he was suffocating and having a panic attack because his co-workers
celebrated his birthday. Id. at 63:6-7.
About one minute into the meeting, Plaintiff became very red. Id. at 63:11-12. He then
closed his eyes and clenched his fists. Id. at 63:12-13. When Ms. Blackburn asked if he was okay,
Plaintiff closed his eyes, opened his eyes, look directly at her, and commanded silence. Id. at
63:13-14; 69:1-3. Ted Knauf intervened and asked what he could do to help, and again Plaintiff
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clenched his fists, and commanded silence while shaking. Id. at 63:16-19. Ms. Blackburn became
afraid and thought Plaintiff was going to literally strike her. Id. at 63:19-25.
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Similarly, Mr. Knauf observed Plaintiff close his eyes, clench his fists, grind his teeth, and

become red in the face. (See Ex. G, Knauf Aff. ¶ 4.) He also commanded silence. Mr. Knauf
feared for his own safety and believed that Plaintiff was going to punch or attack him. Id. ¶ 6.
Plaintiff’s reaction caused Ms. Blackburn to become so scared that she would have called
the police if she had her cell phone with her. Id. at 63:19-22. Ms. Blackburn again asked if there
was anything she could do to help, and Plaintiff responded again by clenching his fists and shaking
while turning red. Id. at 64:7-9. Ms. Blackburn and Mr. Knauf then stepped out of the room to
remove themselves from the situation. Id. at 64:9-12.
Ms. Blackburn and Mr. Knauf waited outside the room. Id. at 64:14-15. About three or
four minutes later, Mr. Knauf suggested that they escort Plaintiff out due to the frightfulness of the
event. Id. at 64:16-18. Once Plaintiff stepped out of the room, Ms. Blackburn suggested that
Plaintiff leave for the day and return on the following Monday. Id. at 64:19-20. They were so
concerned about Plaintiff’s behavior that they took the precaution of taking his key FOB and
notifying security that he was not permitted to return. (Ex. G, Knauf Aff. ¶¶ 7-8.)
C. Plaintiff’s Termination
That same day, Mr. Knauf, Ms. Blackburn, Ms. Wimmers, and Julie Brazil, Gravity’s
Chief Operating Officer, spoke on the phone concerning Plaintiff’s behavior during the meeting.
(See Ex. C, Blackburn Dep. at 71:2-6; Ex. B, Brazil Dep. at 7:10.) Ms. Blackburn and Mr. Knauf
informed Ms. Brazil that Plaintiff’s actions, body language, and words made them feel physically
threatened and unsafe in the workplace. (See Ex. B, Brazil Dep. at 35:22-15; Ex. C, Blackburn
Dep. at 80:21-23.) Mr. Knauf told Ms. Brazil that Plaintiff was clenching his fists, grinding his
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teeth, and becoming red in the face. (See Ex. B, Brazil Dep. at 36:13-19.) Mr. Knauf reported to
Ms. Brazil that he believed Plaintiff may have been ready to strike someone. Id. at 36:17-19.
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Gravity Diagnostics has a zero tolerance policy for employees making co-workers feel

physically threatened or unsafe in the work place. (See Ex. B, Brazil Dep. at 54:4-8.) As a result
of his conduct during his meeting with Ms. Blackburn and Mr. Knauf, Ms. Brazil decided to
terminate Plaintiff. Id. at 26:19-23; 30:8-11. Ms. Brazil did not learn that Plaintiff allegedly had
a panic attack until after his termination. Id. at 55:9.
II. LAW AND ARGUMENT
This is a disability discrimination and retaliation lawsuit in which Plaintiff alleges he was
denied a reasonable accommodation, and subjected to further discrimination by way of his
disability when he was terminated from his job. Plaintiff also seeks damages for retaliation.
Initially, Plaintiff’s claims fail as a matter of law because he cannot establish a prima facie
case for disability discrimination. Furthermore, even if Plaintiff can establish the elements for a
prima facie case of discrimination, Gravity Diagnostics had a legitimate non-discriminatory reason
for his termination. As a result, summary judgment in favor of is Gravity Diagnostics is warranted
on all of Plaintiff’s claims.
A. Standard of Review
This Motion is made pursuant to CR 56. The purpose of CR 56 is to expedite the
disposition of cases and to avoid unnecessary trials when no genuine issues of material facts are
raised. Steelvest, Inc. vs. Scansteel Service Ctr., 807 S.W.2d 476, 482 (Ky. 1991); Brown
Foundation vs. St. Paul Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991). In Steelvest, the Kentucky
Supreme Court stated that the movant bears the initial burden of convincing a Court by a record
of evidence that no genuine issue of material fact is in dispute. The burden then shifts to the party
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opposing summary judgment to present affirmative evidence showing that there is a genuine issue
of material fact for trial. Steelvest, at 482; see also Hubble vs. Johnson, 841 S.W.2d 169, 171 (Ky.
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1992). Summary judgment is proper when the evidence demonstrates that there exists no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
See, e.g., Calhoun v. CSX Transp., Inc., 331 S.W.3d 236 (Ky. 2011).
B. Plaintiff Cannot Establish a Prima Facie Case for Disability

Discrimination Because He Cannot Establish a Disability, Nor
Discriminatory Treatment by Reason of His Disability
Kentucky law provides that it is unlawful practice for an employer to discharge any
individual because the person is a qualified individual with a disability. See KRS § 344.040 (1)(a).
KRS § 344.010(4) defines “disability” as “(a) A physical or mental impairment that substantially
limits one (1) or more of the major life activities of the individual; (b) a record of such an
impairment; or (c) being regarded as having such an impairment.” Courts have held that since the
language in the disability discrimination provisions of the Kentucky Civil Rights Act tracks the
Americans with Disabilities Act, it should interpreted consistent with that Act. See Macy v.
Hopkins County Bd. of Educ., 429 F.Supp. 2d 888, 2006 LEXIS 28035 (W.D. Ky. 2006), aff’d,
434 F.3d 357 (6th Cir. 2007).
To establish a prima facie case of disability discrimination, a Plaintiff must show (1) that
he has a disability; (2) that he was otherwise qualified for the position; and (3) that the employer
subjected him to discriminatory treatment solely by reason of his disability. Turner v. Sullivan
Univ. Sys., 420 F.Supp.2d 773, 782 (W.D. Ky. 2006) (citing Monette v. Electronic Data Systems
Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). The Plaintiff bears the initial burden of establishing
a prima facie case of disability discrimination against an employer. See Hallahan v. Courier-
Journal, 138 S.W.3d 699, 706 (Ky. App. 2004).

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In this case, for several reasons, Plaintiff cannot establish the elements of a prima facie
case of discrimination.
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1. Plaintiff Cannot Demonstrate a Disability That Substantially

Limits Any Major Life Activity.
An individual’s standing as disabled turns on whether the impairment substantially limits
one or more major life activities of the individual. See KRS § 344.010(4). In analyzing whether
an impairment substantially limits a major life activity, two factors should be considered in tandem
with respect to the individual and life activity. Hallahan, 138 S.W.3d at 708. Generally,
“substantially” suggests “considerable” or “specified to a large degree.” Id. (quoting Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999)). Specifically, the Kentucky Supreme Court
defined major life activities as functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. See Wagner’s Pharmacy,
Inc. v. Pennington, 2015 Ky. Unpub. LEXIS 25 at *7 (Ky. 2015) (citing 29 CFR § 1630.2(i))
(opinion attached as Ex. E.).
In terms of a major life activity, the record is completely devoid of any life activity affected
by Plaintiff’s anxiety. The record establishes that the Plaintiff is able to care for himself, perform
tasks, walk, see, hear, speak, breathe, learn, and work. At best, Plaintiff’s theory is that Plaintiff
is disabled because he gets anxious on his birthday and prefers not to celebrate it. This is not a
disability that can give rise to a disability discrimination claim.
To illustrate, even when Plaintiff’s birthday is celebrated, he is able to complete all of the
aforementioned daily life activities. Insofar as Plaintiff claims his anxiety affects his ability to
work, Plaintiff was able to complete his work on his birthday without issue. Moreover, the record
is clear that the Plaintiff’s anxiety has not affected his employment in any capacity, and he
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continues to be able to work. Furthermore, at Gravity, Plaintiff was never reprimanded nor
received any negative reviews during his assessments prior to the events giving rise to his
termination. In fact, Plaintiff often took on additional “odd jobs” and never felt the need to tell
4830-7940-6581.2 9
anyone at Gravity that certain situations could lead to a panic attack. Additionally, Plaintiff never

even felt the need to disclose his anxiety to Gravity’s HR or his direct supervisor. Now, he is
currently employed and a student.
Next, to be substantially limiting, an impairment must do more than interfere with an
activity in a minor way or for a temporary period. “An individual must have an impairment that
prevents or severely restricts the individual from doing activities that are of central importance to
most people’s daily lives” and the impairment’s impact must be permanent or long term. Motor
Mfg., Kentucky v. Williams, 534 U.S. 184, 197 (2002). Specifically, “(i) the nature and severity of
the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent
or long term impact, or the expected permanent or long term impact of or resulting from the
impairment” are all factors to be considered. Wagner’s Pharmacy, at *7 (2015).
Here, Plaintiff cannot establish his anxiety is substantially limiting. At the time
surrounding the termination, the Plaintiff had one or two panic attacks a year. Those panic attacks
lasted one or two minutes. A maximum total of four minutes per year is hardly a restriction on the
Plaintiff’s daily life.
“Where a Plaintiff has an impairment and whether the conduct affected by the impairment
is a major life activity under [KRS § 344.010(4)] are legal questions.” Hallahan, 138 S.W.3d at
707. As such, resolving this case on summary judgment is proper at this time. Because the
Plaintiff cannot establish an impairment that substantially limits any major life activity, his claims
for disability discrimination fail as a matter of law. SUM : 000010 of 000099
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2. Plaintiff Cannot Establish that Gravity Diagnostics Subjected

Him to Discriminatory Treatment Solely by Reason of His
Disability.
The third prong of the prima facie case for disability discrimination requires that the
Plaintiff establish his employer subjected him to discriminatory treatment solely by reason of his
disability. Of course, this prong of the prima facie case assumes the Plaintiff is disabled.
Assuming the Plaintiff was disabled, he was not subjected to discriminatory treatment due to his
disability.
While meeting with his supervisor Amy Blackburn and manager Ted Knauf the day after
his birthday, Plaintiff became red, clenched his fists, and commanded silence. He also opened his
eyes, glared at Ms. Blackburn, and reasserted his demand for silence, despite the good intentions
of Ms. Blackburn and Mr. Knauf. Both Mr. Knauf and Ms. Blackburn were afraid that the Plaintiff
was going to physically strike them. They reported to Julie Brazil that Plaintiff’s actions and body
language during their meeting made them feel physically threatened and unsafe in the workplace.
(Ex. B, Brazil Dep. at 35:23-25.) As a result, Ms. Brazil decided to terminate Plaintiff.
Understandably, Gravity Diagnostics has a zero tolerance policy for employees making co-
workers feel physically threatened or unsafe in the workplace. Id. at 54:6-8.
Plaintiff was not subjected to discrimination because of his alleged disability. Ms. Brazil
testified that she was unaware that Plaintiff even had an alleged disability until after his
termination. Id. at 55:6-9. Plaintiff was terminated because he made his supervisor and a manager
at Gravity Diagnostics feel physically threatened and unsafe. As set forth below, this is a legitimate
non-discriminatory reason for termination.

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C. Gravity Diagnostics had a Legitimate Non-Discriminatory Reason

for Terminating the Plaintiff.
If an employee establishes a prima facie case for disability discrimination, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for firing him. Turner v.
Sullivan Univ. Sys., 420 F.Supp.2d 773, 782 (W.D. Ky. 2006)(citations omitted). “The employer’s
burden is satisfied if he simply explains what he has done.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 428, at 256 (1980) (citations omitted).
Even if Plaintiff has satisfied his burden to establish a prima facie case of discrimination,
Gravity Diagnostics easily satisfies its burden of a legitimate nondiscriminatory reason for
terminating Plaintiff. To reiterate, as explained supra, Gravity Diagnostics has a zero tolerance
policy for employees making co-workers feel physically threatened or unsafe in the workplace.
(See Ex. F. Employee Handbook at 14-15.) Once Plaintiff’s supervisor and a manager reported to
Julie Brazil that they felt physically threated and unsafe, the decision was made to terminate him.
An employer may legitimately fire an employee for conduct, even conduct that occurs as a
result of a disability, if that conduct disqualifies the employee from his or her job. Grizzell v. City
of Alexandria, 2015 U.S. Dist. LEXIS 70182, *49-50, 2015 WL 3463567; Macy v. Hopkins Cnty.
Sch. Bd. of Ed., 484 F.3d 357, 366 (6th Cir. 2007) (abrogated on other grounds by Lewis v.
Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012)); Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 813 (6th Cir. 1999); Brohm v. JH Props., Inc., 149 F.3d 517, 521-22 (6th Cir.
1998). Gravity Diagnostics had a legitimate and nondiscriminatory reason for terminating
Plaintiff, as there is no question that Gravity was motivated by a legitimate concern for employee
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safety. As such, even if Plaintiff is able establish a prima facie case of discrimination, his claims
fail as a matter of law.
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D. Plaintiff’s Claim for Retaliation Fails Because He Was Terminated

For Making Co-Workers Feel Unsafe
Plaintiff alleges that Gravity Diagnostics retaliated against him when he confronted Gravity
about disregarding his request for a reasonable accommodation. (See Complaint ¶ 25-26.) In
Kentucky, “[t]o make out a case of retaliation, the Plaintiff must show: (1) that he engaged in a
protected activity; (2) that he suffered adverse employment action; and (3) that a causal connection
existed between the protected activity and the adverse action.” Lewis v. Quaker Chem. Corp., 2000
U.S. App. LEXIS 22321 at *22 (6th Cir. 2000)(citing Penny v. United Parcel Serv., 128, F.3d 408,
417 (6th Cir. 1997); Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir. 1990);
Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky. App. 1991)). “If the Plaintiff
establishes the prima facie of retaliation, the burden shifts to the defendant to establish a legitimate,
nondiscriminatory adverse employment action.” Id.
Plaintiff’s claim for retaliation must be dismissed. Even if the Plaintiff’s request not to
celebrate his birthday is a “protected activity,” there is no causal connection between Plaintiff’s
termination and his request to not have a birthday celebration. Ms. Wimmers testified that she
simply forgot to relay the message to the person that coordinated birthday celebrations. Ms.
Wimmers did not make the decision to terminate Plaintiff. There is no evidence in the record that
Julie Brazil decided to terminate Plaintiff because of his alleged request for accommodation.
Plaintiff was not terminated because he asked that his birthday not be celebrated; Plaintiff
was terminated due to Gravity’s zero tolerance policy for making co-workers feel unsafe and
physically threatened. As set forth above, Gravity had a legitimate, non-discriminatory reason for
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terminating Plaintiff. As such, the Plaintiff’s claim for retaliation fails as a matter of law.
4830-7940-6581.2 13
IV. CONCLUSION

WHEREFORE, there being no dispute of material fact left for resolution, all of Plaintiff’s
claims fail as a matter of law, and the entry of summary judgment in favor of Gravity Diagnostics
is warranted at this time.
Respectfully submitted,
/s/ Katherine L. Kennedy

LEWIS, BRISBOIS, BISGAARD & SMITH
909 Wright’s Summit Parkway, Suite 230
Ft. Wright, KY 41011
kate.kennedy@lewisbrisbois.com
Phone: (859) 663-9830
Fax: (859) 663-9829
Attorney for Defendant
CERTIFICATE OF SERVICE
This is to certify that on the 19th day of August 2021, I electronically filed the foregoing
with the Clerk of the Court by using the court’s e-filing system, and a true and correct copy was
served via electronic mail and/or U.S. Mail upon the following:
Anthony J. Bucher
Gatlin Voelker, PLLC
50 E. Rivercenter Blvd. Ste. 1275
Covington, KY 41011
tbucher@gatlinvoelker.com
/s/ Katherine L. Kennedy____________________

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EXHIBIT A
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Page 1

1 COMMONWEALTH OF KENTUCKY
2 KENTON CIRCUIT COURT
3 CIVIL ACTION NO. 19-CI-1631
4
5 KEVIN BERLING,
6 Plaintiff
7
8 VS.
9
10 GRAVITY DIAGNOSTICS, LLC,
11 Defendant
12
13
14
15
16
17
18
19
20
21
22 Job No. CS4473788
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23 DEPONENT: KEVIN BERLING

24 DATE: FEBRUARY 24, 2021
25 REPORTER: MAGGIE PATTERSON
Veritext Legal Solutions

800-567-8658 973-410-4098
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1 A Yes. I did.
2 Q At what year did you graduate?
3 A I graduated in 2015.
4 Q What was your degree?
5 A My degree was a Bachelor of Arts in biology.
6 Q Have you had any education -- formal education
7 since graduating from Bellarmine?
8 A Yes.
9 Q Okay. What's -- tell me about that.
10 A I am currently a student at Northern Kentucky
11 University in their neuroscience program.
12 Q I'm not familiar with neuroscience at all.
13 What kind of -- are you scheduled to graduate any time
14 soon?
15 A No. Right now they are preparatory classes
16 for getting my PhD in neurobiology.
17 Q Now, would you get your PhD at NKU, or do you
18 -- would you go to another institution?
19 A I would go to another institution.
20 Q Do you still have to go through an application
21 process to get into --
22 A Yes.
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23 Q -- another institution? Are you a full-time

24 student?
25 A No.

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1 Q Do you know how to spell her last name,
2 maiden?
3 A H-I-T-T-E-R.
4 Q And do they have any adult children?
5 A No adult children. They have one child who is
6 3.
7 Q Okay. Other than this lawsuit we're going to
8 talk about, have you been involved in any other lawsuits
9 where you've either sued somebody, or someone has sued
10 you?
11 A No.
12 Q Are you currently employed anywhere?
13 A Yes.
14 Q Where are you working?
15 A I am working at Northern Kentucky University.
16 Q What are you doing for NKU?
17 A I work in their prep lab. I prep the
18 microbiology, genetics, anatomy and physiology, and
19 general biology labs.
20 Q All right. Forgive me, I'm not in this field
21 at all. What does it mean to prep the labs?
22 A I -- I create augers and solutions that they
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23 can use during their class period. A -- an auger is

24 what you would use to streak bacteria on so it can grow
25 or, other type of biological organism so it can grow

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1 A A little over a year.
2 Q Were you hired in January or February of 2020?
3 A I guess it would be January of 2020.
4 Q This is such a difficult question with COVID,
5 you say it's like so -- were your hired to work about 15
6 hours a week?
7 A Yes.
8 Q Did that stay consistent through 2020?
9 A It did until the pandemic restrictions
10 increased and then my duties became less lab-based and
11 more computer-based but they -- they were very flexible
12 and accommodating with all student workers. So my -- my
13 schedule didn't fluctuate on a weekly basis depending on
14 how COVID was affecting the -- the world.
15 Q And since you -- has your -- excuse me, has
16 your rate of pay changed at all since you were hired
17 that you know of?
18 A Not that I know of.
19 Q Do you have any -- as a student worker, do you
20 -- are you offered any other type of benefit besides
21 pay?
22 A I'm -- I'm not -- that's difficult for me to
SUM : 000019 of 000099
23 answer. Since I'm allowed to work with the professors

24 more, I get a better relationship with the professors.
25 And they are more accommodating to wri -- to writing

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1 I'm doing there.
2 Q All right. When were you hired at Gravity
3 Diagnostics?
4 A I believe I was hired in September of -- I
5 think it was 2019. But it could have been 2018. I'm
6 sorry. I'm --
7 Q I'm not trying to trick you, obviously we have
8 these records. I was -- here's what, according to your
9 complaint was, and if it -- obviously, Gravity has those
10 records, but according to your complaint, which I have
11 in front of me says, on or about October 2, 2018, you
12 were hired.
13 A Yes.
14 Q Okay. And then --
15 A I was hired in October, and I started working
16 in September.
17 Q Okay.
18 A Wait. No. I'm -- I'm sorry. Other -- other
19 way around. I apologize. I'm -- I'm a little --
20 Q Prior to work -- to being hired at Gravity in
21 October -- September, October 2018, where were -- where
22 did you work?
SUM : 000020 of 000099
23 A I worked in the Anderson Kroger Pharmacy.

24 Q What was your position at the Anderson Kroger
25 Pharmacy?

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1 divorced.
2 Q When were your parents divorced?
3 A They got divorced when I was turning 17, yes.
4 Q What year would that have been, or I can try
5 to do the math. 2009?
6 A That sounds accurate.
7 Q Approximately 2009?
8 A Yeah.
9 Q And who diagnosed you with anxiety disorder?
10 A I was seeing a cognitive health therapist at
11 Children's Hospital. Unfortunately, I do not remember
12 his name. I would have to -- to check my medical
13 records.
14 Q Was it Children's in Cincinnati?
15 A Yes.
16 Q When did you begin seeing a cognitive
17 behavioral specialist at children's?
18 A I started seeing him when I was 16 for an
19 illness that cropped up during high school.
20 Q And what was that?
21 A I was diagnosed with chronic fatigue syndrome
22 and fibromyalgia. But that diagnosis was later changed
SUM : 000021 of 000099
23 to severe food allergy that was presenting itself as

24 chronic fatigue syndrome and fibromyalgia.
25 Q Okay. I'm just checking minutes. You were

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1 been treated with any long-term medication for a brief
2 period of about two months. When it first came on, I
3 was given a medication, but I reacted poorly to it, and
4 they decided to discontinue it after about two months.
5 Q I understand, too, for this case that you've
6 had panic attacks?
7 A Yes.
8 Q And honest -- honestly in quest -- these
9 questions not as -- I know you're not testifying as an
10 expert in this case, but, so are panic attacks, a
11 symptom of anxiety. What's your understanding of them?
12 A Yes. They -- they are a manifestation of the
13 symptoms of anxiety.
14 Q I think you worded it much better than I did.
15 How long have you been experiencing panic attacks?
16 A I've -- I've been having them very rarely
17 since I was diagnosed. Unfortunately, they have become
18 more -- more frequent due to the issues at Gravity
19 Diagnostics. But before then, I was having one or two a
20 year.
21 Q So prior -- when you say the issues at Gravity
22 Diagnostics, do you mean the issues surrounding the
SUM : 000022 of 000099
23 termination?
24 A Correct.
25 Q Or would it also include the working

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1 environment at Gravity or just the issues surrounding
2 the termination?
3 A The issues surrounding the termination.
4 Q Okay. So we'll talk about those in a few
5 minutes. But my understanding is that those occurred in
6 August 2019?
7 A Yes.
8 Q So prior to August 2018, you typically had one
9 or two panic attacks a year?
10 A Correct.
11 Q What -- let's talk about prior to August 2019,
12 are there any specific triggers for your panic attack?
13 A Yes.
14 Q Okay. What are those?
15 A It is -- it is celebrating my birthday. That
16 is the day my parents told me they were getting a
17 divorce and they inadvertently blamed me for it and due
18 to that and some issues immediately after that -- that
19 day is a day that is very stressful and causes a lot of
20 anxiety for me.
21 Q Any other triggers?
22 A I guess extremely stressful situations can
SUM : 000023 of 000099
23 cause me panic attacks now.

24 Q Do you need to take a break?
25 A I think I'm okay now.

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1 ask that, you know, you do whatever you need to do and
2 keep us, you know, communicate with us and, but
3 whatever. If we can -- we can take a break at any time,
4 is my point, okay?
5 A Okay. Thank you.
6 Q Okay. So since 2019, how frequently do you
7 experience panic attacks?
8 A I am getting a panic attack once or twice a
9 month. Sometimes multiple times in a week. Depending
10 -- depending on what -- what I'm doing that week.
11 Q Are the panic attacks, let's say that you've
12 been experiencing since August 2019. Are they generally
13 the same in terms of the physical symptoms you're
14 experiencing, or do they vary?
15 A The -- the physical symptoms are typically the
16 same.
17 Q Okay. And what are those?
18 A I'll start hyperventilating. I will start
19 shaking, I will try and hold myself, and I will cry.
20 Q How long do they typically last?
21 A That is difficult for me to answer. When I'm
22 have having one. They feel like they're lasting a very
SUM : 000024 of 000099
23 long time. But they are, in reality, probably only

24 lasting one or two minutes.
25 Q Is there anything that you do to help deal

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1 with the panic attack?
2 A I just -- mindful thinking, repeating certain
3 mantras over and over again. Trying to allow the panic
4 attack to happen instead of trying to hold it back. I
5 found that if I try and hold back a panic attack, it --
6 it will just last for longer. But if I can breathe
7 through it and accept that this is going to end, that is
8 just something I need to process right now that will
9 help alleviate how long the panic attack lasts.
10 Q Do you experience them in public settings?
11 A I have before, yes.
12 Q And what do you do when you're in a public
13 setting?
14 A I will try and remove myself from the
15 situation as best I can. Either find a -- a restroom or
16 try to get to my car or if I'm at school, there are
17 certain labs or classrooms that are unoccupied that I
18 can go ahead and have a panic attack in. If I can't do
19 that I will do my best to let whose ever around me know
20 that I'm having a panic attack, and most of the people
21 that I'm around with on a daily basis know that I have
22 panic attacks, and they're aware of what they should and
SUM : 000025 of 000099
23 shouldn't do for it.

24 Q So since August 2 -- or -- yes, since August
25 2019, since leaving Gravity Diagnostics, what have been

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1 A No. No. I have not.
2 Q Okay. So according to your complaint, you
3 were hired on or about October 2, 2018, by Gravity
4 Diagnostics; does that sound --
5 A Correct.
6 Q How did you get the job at Gravity?
7 A At the time, there was a woman working there,
8 Mrs. Heiman (phonetic), I was friends with her son. She
9 was aware I was looking for other job opportunities
10 outside of the pharmacy and she offered to help me get
11 my resume in there.
12 Q Is she still with Gravity?
13 A No. She is not.
14 Q And you were hired as a lab tech accessioner?
15 A Correct.
16 Q And who hired you?
17 A I -- I was hired by Laura Heiman.
18 Q Do you know what Laura's position was at the
19 time?
20 A I do not remember. I'm sorry.
21 Q That's fine. I should tell you this isn't a
22 memory test. If you don't remember, you can tell me.
SUM : 000026 of 000099
23 What were your job duties as a lab tech/accessioner? If

24 -- let me make sure I clear this up first. This are --
25 I'm just going off your complaint. Is a lab tech the

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1 same as an accessioner? Or is that two different jobs?
2 A They -- they are two different jobs. A
3 laboratory technician worked in the lab, the accessioner
4 worked outside of the lab doing more data processing and
5 less wet lab work.
6 Q And did you perform both jobs while working at
7 Gravity Diagnostics?
8 A Yes. I did not start doing both jobs, I
9 started as an accessioner.
10 Q Okay. And what were your job duties as an
11 accessioner?
12 A I was -- I had to sort and organize the urine
13 samples that came in. Then myself, along with the other
14 accessioners, we would type in the demographical
15 information and the -- the drug testing, and the
16 doctor's name, and the practice name into the computer
17 system, and get that all processed. And then send it
18 over to the lab and they would do the lab -- wet lab
19 work. I also had to scan in the forms at the end of the
20 day. Check-in with insurance companies to make sure
21 their insurance was valid. I believe those were my only
22 assigned duties, but I was given more duties as -- as I
SUM : 000027 of 000099
23 was there longer.

24 Q Was there an accession -- a team of
25 accessioners?

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1 A Correct.
2 Q And how many accessioners were there?
3 A I believe there were six of us. That number
4 did fluctuate a little bit.
5 Q And were there -- was there a designated area
6 of the building that the accessioners worked in?
7 A Yes.
8 Q And what was the setup like? Did you-all have
9 individual offices or --
10 A We -- we essentially just had lab benches with
11 computers at them and we would have two people -- two
12 accessioners per lab bench. And we had about six or
13 seven lab benches. And then we just had a little
14 wheeled cart that were filled with the urine samples and
15 we would place that between the two accessioners, and
16 then we would pull from that cart throughout the day.
17 Q Did you share a bench with one person?
18 A Yes.
19 Q And who did you share with?
20 A Her name was Angela. I -- I don't remember
21 her last name.
22 Q Was she the only person that you shared a
SUM : 000028 of 000099
23 bench with or is there anywhere else -- anyone else

24 throughout your employment?
25 A For a brief time, Alisha Walton sat next to

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1 doing lab tech work? Was that a promotion, or was it --
2 what was it?
3 A When I was originally hired, they asked me to
4 work in the lab. And then on my first few days, they
5 said we need more help with the accessioning side, can
6 you do that for the first two months, and then we'll
7 move you into the lab. And then it took about eight
8 months until I was able to work in the lab two days a
9 week for the first three hours of my shift. And then I
10 started to split my time about equally between the --
11 the lab tech and the accessioner duties.
12 Q As a lab tech -- as the lab tech port side of
13 your job, who was your supervisor?
14 A That would be JP Canner.
15 Q Do you know how to spell JP's last name?
16 A I do not.
17 Q And how many people, if you know, worked in
18 the lab tech -- worked in a lab tech position at the
19 same time you did?
20 A About ten.
21 Q Then on the accessioner side, who was your
22 supervisor?
SUM : 000029 of 000099
23 A It was Bernadette Wagner when I first started,

24 and then Bernadette Wagner left, and Amy Blackburn
25 became one of my supervisors.

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1 A At -- at that point, Bernadette was doing the
2 review, and Amy was sitting in with Bernadette.
3 Q How often did Allison sit in on your reviews?
4 A I had reviews once a month. Allison was there
5 for probably three of them.
6 Q What were the in-person -- what were the
7 in-person reviews like?
8 A They were -- I just -- there to let us know
9 our -- our numbers for the month. So how many samples
10 did we process? What was our error rate? How many
11 quality control checks did we do? How much -- how much
12 other responsibilities we were doing, the general things
13 of that nature.
14 Q Do you recall ever receiving a negative
15 review?
16 A No. I -- I believe the -- the only, what I
17 would consider negative review, is there was one day
18 where my error rate, or -- I'm sorry, one month, where
19 my error rate went up by two percent, but I didn't
20 receive any -- anything negative.
21 Q There was no discipline as a result of that?
22 A No. No.
SUM : 000030 of 000099
23 Q I assume you were probably just told to work

24 on the rates and --
25 A Actually, I still had the -- the lowest error

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1 Q 401(k)?
2 A I don't remember.
3 Q Okay. During your entire employment, were you
4 ever disciplined by your supervisors?
5 A No.
6 Q Who were you closest with at the office?
7 A Probably Kaileigh (phonetic) Hummeldorf, we
8 were both around the same age and had similar
9 backgrounds.
10 Q Was she an accessioner?
11 A Correct. She was an accessioner.
12 Q Did you socialize with anyone outside of the
13 office?
14 A No.
15 Q Did you like working at Gravity?
16 A Yes.
17 Q Prior to August 2019, did you have any
18 complaints about working at Gravity?
19 A I mean, I -- I was made fun of a lot by a lot
20 of people around there for a lot of different reasons.
21 Q What were you made fun of for?
22 A Amy liked to make fun of me for a lot of
SUM : 000031 of 000099
23 different reasons. I was made fun of for playing

24 Dungeons & Dragons, for listening to Disney music and
25 Broadway musicals. I was made fun of a lot for dating

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1 customer practice was at Gravity Diagnostics concerning
2 birthdays?
3 A There -- there was a cake that was bought for
4 you. Everyone signed a card. There was a banner,
5 occasionally balloons that were in the break room. You
6 had to have your picture taken, and they'd sing happy
7 birthday. And we -- we normally got an extended lunch
8 break to do that depending on how busy we were.
9 Q Was the celebration in the office area or in
10 the accessioner area?
11 A It was in the office area.
12 Q Did you say lunchroom?
13 A Yes. The -- the lunchroom. It's -- the
14 lunchroom is in the office area.
15 Q Who was in charge of organizing the birthday
16 celebrations?
17 A Allison was in charge of it.
18 Q And did they do this birthday celebration for
19 every employee to your knowledge?
20 A Yes.
21 Q And were -- did you ever have the occasion to
22 go to someone else's birthday celebration?
SUM : 000032 of 000099
23 A Yes. More -- more than a few.

24 Q All right. So how do -- so I take it that
25 August 2019 would've -- was the first -- your first

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1 Allison.
2 Q What were your normal working hours with
3 Gravity?
4 A I would typically get there around 8:45, 9:00,
5 and then I'd work until around 5:30, maybe 6:00,
6 depending on how busy we were and how many extra
7 responsibilities I had to do that day, I think.
8 Q And it's your recollection that you told
9 Allison that celebrating your birthday could lead to a
10 panic attack?
11 A Yes. There's specific language my therapists
12 have all taught me and the -- the very simple statement
13 of "the situation can cause a lot of stress and anxiety
14 and lead towards a panic attack" is -- is something I've
15 been taught to tell people for -- for year.
16 Q And would that include Sarrah Garvin, as
17 someone --
18 A Yes.
19 Q -- taught you that? Prior to this
20 conversation with Allison, did you ever -- did you have
21 a panic -- ever have a panic attack at Gravity
22 Diagnostics?
SUM : 000033 of 000099
23 A Not to my recollection.
24 Q Prior to his conversation with Allison, did
25 you ever have to feel the need to tell somebody that a

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1 situation could cause you stress can lead to a panic
2 attack?
3 A No.
4 Q Did you ever tell anyone pro -- prior to this
5 conversation with Allison, did you ever tell anyone at
6 Gravity Diagnostics that you had anxiety?
7 A I never specifically said I had anxiety, but I
8 did tell Amy and Allison that I can't stay late on -- on
9 Wednesdays because I have to see my therapist shortly
10 after I leave work. So I -- I never explicitly said I
11 had anxiety but they -- they were aware that I was
12 seeing a therapist on a weekly basis.
13 Q And were you required to leave work early on
14 Wednesdays to go to your therapist?
15 A No. I just could not stay late. Sometimes I
16 would be asked to stay late to do various jobs. And I
17 just -- I couldn't stay past my normal hours on
18 Wednesdays.
19 Q And did they honor that request?
20 A Yeah. Most of the time.
21 Q Prior to this conversation with Allison, did
22 you ever tell anyone at Gravity Diagnostics that you had
SUM : 000034 of 000099
23 panic attacks?
24 A No. I did not.
25 Q Just out of curiosity, why did you tell

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1 birthday on Wednesday on --
2 A Yes. It was on -- on Wednesday, August 7th.
3 Q I know you've told me that celebrating
4 birthday causes -- is a trigger for the -- your panic
5 attacks, has this been the case since 2009?
6 A Yes.
7 Q Okay. Since 2009 have you done anything --
8 and done any have a birthday celebrations?
9 A Nothing public. There have been a few very
10 small gatherings. That was just like me and my mom and
11 brother. Nothing -- nothing larger than four people.
12 Q Okay. So between the time that you spoke with
13 Allison and your actual birthday the following week on
14 August 7th, did you have any con -- further
15 conversations with Allison?
16 A No. After our conversation on Friday, I was
17 led to believe that Allison wa -- was going to take care
18 of it.
19 Q Did you have any conversations with anyone
20 else concerning your birthday prior to August 7th?
21 A No.
22 Q Okay. So tell me about August 7th. I guess -
SUM : 000035 of 000099
23 - I assume you got to work at your normal time?

24 A Yes. I -- I can just walk you through the --
25 the day.

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1 Q Sure.
2 A So I got to work when I normally do. I walked
3 past the accessioner room, and a bunch of people shouted
4 happy birthday at me. That got me a little on edge. So
5 I -- I left the accessioner room and put -- put down my
6 -- my various belongings in the lab. That was a day I
7 was assigned to work in the lab in the morning. So I
8 just -- I worked in there until lunch. Then I went to
9 the break room for -- for lunch and they -- they had the
10 -- the banner up and everyone shouted happy birthday
11 again, and they -- they started to try to do all the
12 birthday celebrations, but I -- I quickly grabbed my
13 lunch from the -- the refrigerator and I went out to my
14 car and had a -- a panic attack in there, and after I
15 was -- I was over the -- the panic attack, I sent
16 Allison a message through our team's communication
17 system, which is how we're -- we talk back and forth.
18 And I don't remember exactly what I said, but I -- I
19 said something along the lines that I thought my
20 birthday wasn't going to be celebrated. I'm -- I'm
21 feeling really panicky right now. I don't know if I can
22 come back into work. And then I didn't hear anything
SUM : 000036 of 000099
23 back from her. So I didn't know if I was allowed to go

24 home or not. So I just went back in and continued the
25 rest of my day trying to do most of my duties in the lab

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1 or in the office, and I put in headphones and just
2 listened to some of my -- my music that I like for the
3 rest of the day.
4 Q Did you say you worked in the lab the rest of
5 the day?
6 A Yes. I -- I worked in the lab or I -- I
7 worked in the office doing various odd jobs that are
8 there that I know that needed to be done.
9 Q Throughout rest of the day, was there any
10 further discussion about your birthday?
11 A Not that I recall.
12 Q Was anyone able to take a picture of you with
13 the banner?
14 A No. I -- I was in the -- the break room with
15 the banner for less than 30 seconds. I -- I was about
16 to have a panic attack and I wanted to get somewhere
17 that I felt safe.
18 Q So you went to your car and you had a panic
19 attack there?
20 A Yes.
21 Q Do you know how long you stayed in your car
22 before you eventually went back in?
SUM : 000037 of 000099
23 A I was probably in there about 45 minutes.

24 Q Did you have any conversations with anyone
25 throughout the rest of the day concerning your

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1 discomfort, the panic attack?
2 A No. Having a panic attack is actually very
3 exhausting. So I -- I did my best to just stay away
4 from people and try to not engage anyone, which is why I
5 put in headphones and listened to music. And I did
6 responsibilities I knew needed to get done and didn't
7 ask for extra duties like -- like I normally do.
8 Q That day on August 7th, did you tell anyone
9 that you had han -- a panic attack, tell anyone with
10 Gravity Diagnostics that you had a panic attack?
11 A No.
12 Q Did you leave at your normal time that day?
13 A Yes.
14 Q And did you see your therapist that day?
15 A Yes.
16 Q And tell me about that visit.
17 A I -- I saw Sarrah. Since -- since it was a
18 Wednesday, I was already scheduled to see her. She --
19 she could kind of tell I was pretty shooken up already.
20 So we just -- she had me walk through the -- the
21 situation. I -- I had another panic attack in Sarrah's
22 office, but that one was much -- much better, because
SUM : 000038 of 000099
23 Sarrah is a trained person that knows how to deal with

24 them. But we -- we walked through situation. Sarrah
25 assured me that I -- I did everything I could. I -- I

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1 document?
2 A Yes.
3 Q Okay. And what is it?
4 A This is the -- the message I sent to Allison
5 Wimmer -- on the day I had my panic attack, and then the
6 -- the final message is what I sent to her on August
7 8th, the day after.
8 Q Was Allison at the office on your birthday on
9 August 7th?
10 A She was not.
11 Q Do you know how the accessioner team knew it
12 was your birthday? But when you said -- just for
13 context, when you said when you walked in, first thing
14 in the morning, they all said happy birthday. Do you
15 know how they knew that it was your birthday?
16 A I do not know. I -- I was told it was written
17 on the whiteboard calendar. But other than that, I
18 don't know how they would know.
19 Q So looking at Exhibit 1, the following day on
20 August 8, 2019, it looks like you sent another message
21 to Allison?
22 A Correct.
SUM : 000039 of 000099
23 Q And it says, "We need to have a discussion

24 when you are back in the office."
25 A Yes.

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1 she reprimanded you for behavior at work.
2 A I was never reprimanded for behavior.
3 Q Well, did she ever have any conversations with
4 you about how you were behaving at work, not necessarily
5 reprimanding you but
6 A No. The only times where my behavior ever
7 came up would be in my -- my monthly evaluations. But
8 they were always, everyone's happy you're here. Thanks
9 for doing all the odd jobs. Things -- things of that
10 nature. There was never anything negative.
11 Q Did you get along with your co-workers?
12 A Yeah.
13 Q All right. And then before I asked you to
14 stop, I think you were going into Sunday or Monday of
15 that weekend to tell me what happened next in terms of
16 your departure from Gravity?
17 A Well, I -- I was -- I think I was telling you
18 what Sarrah was telling me.
19 Q Oh, go ahead.
20 A And -- and Sarrah was just telling me to enjoy
21 the weekend. "Be happy you have three days off. And
22 then when you get to work with -- Sarrah was telling me
SUM : 000040 of 000099
23 when you get to work on Monday, just see if you can talk
24 to Allison and Amy and try and work through it," so --
25 because no one likes having a panic attack, but now

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1 A Correct.
2 Q And when -- is your next appointment today?
3 A We actually adjusted our -- our schedule so
4 I'm seeing her on Mondays now.
5 Q Okay.
6 A Just it works better with my school schedule.
7 Q Prior to your conversation with Allison
8 Wimmer, where you requested that there be no birthday
9 celebration for you. Prior to that time, had you
10 requested any other type of accommodation from Gravity
11 Diagnostics?
12 A Not that I can recall. I certainly never
13 asked for any special treatment. I was -- I was more of
14 the employee that was just if you tell me what to do,
15 I'll -- I'll do it and get it done because that's --
16 that's how I was raised.
17 MS. KENNEDY: Okay. I don't believe I have any
18 further questions.
19 THE WITNESS: Okay.
20 MR. BUCHER: Thank you. Nothing.
21 COURT REPORTER: We're off the record.
22 (DEPOSITION CONCLUDED AT 12:08 P.M.)
SUM : 000041 of 000099
23
24
25

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CERTIFICATE OF REPORTER
Page 90

COMMONWEALTH OF KENTUCKY AT LARGE
I do hereby certify that the witness in the foregoing transcript was

taken on the date, and at the time and place set out on the Title
page hereof, by me after first being duly sworn to testify the truth,
the whole truth, and nothing but the truth; and that the said matter
was recorded by me and then reduced to typewritten form under my
direction, and constitutes a true record of the transcript as taken,
all to the best of my skill and ability. I certify that I am not a
relative or employee of either counsel and that I am in no way
interested financially, directly or indirectly, in this action.
MAGGIE PATTERSON
COURT REPORTER / NOTARY
MY NOTARY COMMISSION EXPIRES: 06/04/2022
SUBMITTED ON: 05/26/2021

SUM : 000042 of 000099
EXHIBIT B

1

2 COMMONWEALTH OF KENTUCKY
3 DIVISION IV
5 KEVIN BERLING, :
6 Plaintiff, : CASE NO.: 19-CI-01631
7 -v- :
8 GRAVITY DIAGNOSTICS, LLC, :
9 Defendant. :
10
11 * * * * * * * * * *
12
13 The deposition of JULIE BRAZIL, taken before Debra

A. Sprague, Certified Court Reporter and Notary Public in
14 and for the State of Ohio, via videoconference, on the 9th
day of December 2020, beginning at the hour of 2:05 p.m.,
15 and ending at the hour of 3:52 p.m.
16
17
18 DEBRA A. SPRAGUE, CVR-M

Certified Court Reporter
19 8839 Nabida Drive
Cincinnati, Ohio 45247
20 dspraguecvr@yahoo.com
513-708-6607
21
22
23
SUM : 000044 of 000099
24
25
7
1 Q And who's in the conference room with you?

2 A Myself and Mary Talbott.
3 Q Okay. Are you currently employed with
4 Gravity Diagnostics?
5 A Yes.
6 Q What was your hire date?
7 A July 1, 2016.
8 Q What positions have you held with Gravity
9 Diagnostics since that time?
10 A I'm the chief operating officer.
11 Q That's been your sole title since you --
12 since you started working for them?
13 A Yes.
14 Q Okay. And was -- has your employment been
15 continuous?
16 A Yes.
17 Q Okay. What are your job responsibilities as
18 the chief operating officer at Gravity Diagnostics?
19 A I primarily oversee compliance, HR.
20 Q Okay. You --
21 It's my understanding that you reside in Florida?
22 A My primary residence is in Florida.
23 Q What's the address?

SUM : 000045 of 000099
24 A 139 Corral Circle, Saint Augustine, Florida
25 32092.
26
1 assistance of counsel as the -- as the person who provided

2 the responses to these interrogatories. Is that -- Is that
3 correct, to your knowledge?
4 A Yes.
5 Q And then in interrogatory number 2, it says
6 that Plaintiff, who is Kevin Berling, was employed as an
7 accessioners from October 1st of 2018 to August 9th, 2019.
8 Correct?
9 A Correct.
10 Q And so if you would have signed off on these
11 answers, you would -- you would believe that that's true,
12 correct?
13 A Correct.
14 Q You know, these responses also identify you
15 as the individual who made the decision to terminate Kevin
16 Berling. Do you agree with that?
17 A I do.
18 Q And in interrogatory number 4, you state --
19 or it states that he was terminated for his conduct on or
20 about August 8th of 2019. Do you see that?
21 A Yes.
22 Q Is that still your testimony today?
23 A Yes.
SUM : 000046 of 000099
24 Q Okay. So then is it fair to say that he was
25 not terminated because of his actions on August 7th, which

30
1 COURT REPORTER: You did not?

2 MS. KENNEDY: I did not.
3 COURT REPORTER: Okay. Thank you.
4 Sorry, Mr. Bucher, for the interruption. Thank
5 you.
6 BY MR. BUCHER:
7 Q So then is it fair to say that based on your
8 conversations with Amy, Ted, and Alicia on August 8th of
9 2019, is that what was the basis for the decision to
10 terminate Kevin?
11 A Yes.
12 Q Anything else at all?
13 A No.
14 Q Okay. And is it fair to say that you were --
15 there was no consideration of terminating Kevin Berling's
16 employment prior to August 8th of 2019?
17 A No.
18 Q That's not fair to say or you did not? And I
19 apologize for the question.
20 A I'm sorry. You're asking if I had considered
21 terminating him prior to that date?
22 Q Yes.
23 A I had not.
SUM : 000047 of 000099
24 Q Okay. And to your knowledge, had -- had he
25 been disciplined prior to August 8th of 2019?

35
1 Q Okay. Do you --

2 So you don't recall how that call came to happen?
3 A I don't recall who -- who initiated it.
4 Q Okay. Prior to that call, did you -- you --
5 did you know what the subject of that call was going to be?
6 A Yes.
7 Q Okay. And how did you become aware of that?
8 A Again, I -- I spoke with Amy and Ted, and
9 then I spoke with Amy, Ted, and Allison. But I don't
10 remember who I spoke to at exactly what time. It was, you
11 know, all within a short period of time.
12 Q But you believe the call with just Amy and
13 Ted happened first?
14 A I believe it did, but I can't, you know,
15 one hundred percent with certainty say that it did.
16 Q Okay. And do you know, did Amy and Ted
17 initiate that call?
18 A Yes.
19 Q Okay. And did they call --
20 What did they call to tell you? Or what -- what
21 was discussed during that call?
22 A They were making me aware that they had a
23 meeting with Mr. Berling, and during that meeting his

SUM : 000048 of 000099
24 actions and body language and words made them feel
25 physically threatened and unsafe in the workplace. And

36
1 through that, they had requested that he leave work. And

2 they took his fob and, you know, alerted security that he
3 was not to be let into the building until further notice.
4 Q So by the time you were involved in this
5 situation, Kevin had already been removed from the building,
6 correct?
7 A Correct.
8 Q Okay. And did, in that initial call with Amy
9 and Ted or what were --
10 In the first call, did they tell you specifically
11 what actions Kevin engaged in that made them feel unsafe or
12 --
13 A Things like clenching his fist, grinding his
14 teeth, being red in the face, repeatedly telling them to
15 stop speaking to him. Those were the -- the actions that
16 they reported that he had.
17 Ted indicated that his body language felt, to him,
18 like he may -- that Mr. Berling may have been ready to hit
19 or punch someone or some thing through his body language.
20 Q And did he explain what he meant by his body
21 language?
22 A He was -- Just what I said, the red in the
23 face, the grinding of the, you know, his teeth, repeatedly

SUM : 000049 of 000099
24 telling them to stop speaking. Just things, I guess, that
25 made him -- I wasn't in the room, so --

54
1 termination?

2 MS. KENNEDY: I'll just object to the form. But,
3 Julie, you can answer.
4 THE WITNESS: Yes, because I had already had
5 reports from his manager and a director at my company
6 that he had made them both feel physically threatened
7 and unsafe in the work environment, which we have a
8 zero tolerance policy for.
9 BY MR. BUCHER:
10 Q So it's your testimony that if anybody makes
11 somebody feel unsafe or threatened, they are to be
12 terminated, correct?
13 A Correct.
14 Q Okay. Have Allison or Lauren Finn been
15 disciplined for making Kevin Berling uncomfortable in the
16 workplace?
17 A That's never been reported, to my knowledge.
18 Q Has Amy or Ted been disciplined for making
19 Kevin Berling feel uncomfortable or threatened in the
20 workplace?
21 A That has never been reported to me.
22 Q Okay. You were aware that he became upset,
23 clenched jaws, red-faced in response to something that

SUM : 000050 of 000099
24 transpired in a -- in a meeting with them; you were aware of
25 that, correct?
55
1 A Correct.

2 Q Okay. And since this litigation has started,
3 you found out that Kevin --
4 Or when did you find out that Kevin suffers from
5 panic attacks?
6 A The first time that I had ever heard that was
7 in a letter or I don't number if it was -- or actually it
8 wasn't in a letter. It would have been in my conversation
9 with Mr. Berling, I believe, after termination.
10 Q And since learning that --
11 MS. KENNEDY: Well, real quick.
12 MR. BUCHER: Go ahead, Kate.
13 MS. KENNEDY: No. I was just going to say, Julie,
14 outside, of course, any communications with counsel,
15 which --
16 MR. BUCHER: Sure.
17 MS. KENNEDY: -- what you said was outside of
18 counsel. Thank you.
19 BY MR. BUCHER:
20 Q So since reading that letter, had Ted or Amy
21 or Allison or Lauren been terminated because they made Kevin
22 uncomfortable in that meeting?
23 A I don't believe that they made Mr. Berling

SUM : 000051 of 000099
24 feel physically threatened in that meeting.
25 Q And so just so I'm clear, it is the feeling

72
1 C E R T I F I C A T I O N

2
3 STATE OF KENTUCKY,
4 COUNTY OF KENTON, TO-WIT:
6 I, Debra A. Sprague, Certified Court Reporter and

Notary Public in and for the Commonwealth of Kentucky, do
7 hereby certify;
8 That on the 9th day of December 2020, there

appeared via videoconference, before me pursuant to notice
9 and agreement of counsel, JULIE BRAZIL, as a witness in the
previously entitled cause;
10
That the said witness was sworn by me and examined
11 to tell the truth, the whole truth, and nothing but the
truth in said cause;
12
That the deposition was taken by me via stenomask
13 and electronic recording and the foregoing 71 pages contain
a true, full and correct transcription of all the testimony
14 of said witness;
15 That the transcript was made available to counsel,

for the witness for reading and signature;
16
That I am not related to or in any way associated
17 with any of the parties to said cause of action, or their
counsel and that I am not interested in the event thereof.
18
IN WITNESS WHEREOF, I have hereunto set my hand
19 this 20th day of December 2020.
20
21 ______________________
Debra A. Sprague,CVR-M
22 Notary ID 626202
My Commission Expires:
23 July 31, 2023
SUM : 000052 of 000099
24
25
EXHIBIT C

DIVISION IV
CASE NO. 19-CI-01631
KEVIN BERLING, :
Plaintiff :
-v- :
GRAVITY DIAGNOSTICS, LLC, :
Defendant :
- 0 -
The videotaped deposition of AMY BLACKBURN,
taken before Susan K. Lee, CVR-CM, Court Reporter and
Notary Public in and for the State of Ohio, at the law
offices of Bonar, Bucher & Rankin, PSC, 3611 Decoursey
Avenue, Covington, Kentucky, on the 30th day of June,
2020, beginning at the hour of 8:58 a.m. and ending at
10:38 a.m. of the same date.
- 0 -
RIVERSIDE REPORTING
Certified Court Reporters
3238 Hildreth Avenue
Cincinnati, OH 45211
SUM : 000054 of 000099
sueriverside@gmail.com
(513)325-0559
7

1 Q Okay. And did you go to college
2 afterwards?
3 A No.
4 Q Okay. How long have you lived in
5 Independence?
6 A For about eight months.
7 Q Okay. Where did you live before that?
8 A Florence, Kentucky.
9 Q Okay. And did you live in Florence
10 with your husband as well?

11 A Correct.
12 Q And how long did you live in Florence?
13 A Four years.
14 Q Where did you live before that?

15 A Greenville, Ohio.
16 Q Okay. And who did you live with in
17 Greenville?
18 A My -- my sons and my ex-husband.
19 Q Okay. What's your ex-husband's name?
20 A Bo, B-O.
21 Q Last name?
22 A Schneider, S-C-H-N-E-I-D-E-R.
23 Q Does he still live in Ohio?
SUM : 000055 of 000099
24 A Yes.
25 Q Okay. Are you currently employed?

36

1 A It's pretty consistent.
2 Q Okay. So going back to Kevin, is it

3 fair to say that you were satisfied with his
4 performance prior to August 7th of 2019?
5 A Yes.
6 Q Okay. And you -- you were not
7 contemplating recommending termination or had no
8 concerns about his employment prior to that time?

9 A Correct.
10 Q Do you -- when you do those quality

11 check meetings, do you give like -- or do you -- is
12 there an occasion to give like awards or recognition to
13 employees?
14 A Some -- sometimes we did.

15 Q Okay.
16 A Maybe if their error rate was 98, we
17 would write it up on the board, put it in our message

18 board on our teams. That's how we communicate with
19 like the whole company. Stuff like that. Little fun
20 morale things to --
21 Q Okay.
22 A -- boost up the team morale.

23 Q Just a -- a nice way to recognize
SUM : 000056 of 000099
24 somebody for doing a good job?
25 A Mm-hmm.
45

1 A Correct.
2 Q Okay.
3 A To my knowledge.
4 Q I want to talk to you about August 7th
5 or -- August 7th is Kevin's birthday, and it's my

6 understanding that at Gravity Diagnostics at least that
7 there was a practice of celebrating birthdays. Is that
8 correct?
9 A Correct.
10 Q Okay. And when a birthday is

11 celebrated, is it all 20 to 25 people that are in the
12 office, is it just the accessioners?
13 A It's everyone in the office.
14 Q Okay. And -- and it's my understanding

15 that there's -- well, tell me what -- what goes into a
16 birthday celebration at Gravity Diagnostics.
17 A So your name is put on a calendar which

18 is in the break room, and there was a calendar in the
19 accessioning room. It would just say happy birthday
20 whoever.
21 Q Okay.
22 A Then the -- Lauren Finn would buy a

23 cake or like a cookie cake, the break room would be
SUM : 000057 of 000099
24 decorated in like birthday balloons, happy birthday
25 banner, and then there was a hat that would say happy
49

1 does Lauren get the money to buy the cake; do you know?
2 A Through Gravity Diagnostics.

3 Q Does she get it -- but does she get it
4 from Julie or does she get it from Allison?
5 A Allison probably.
6 Q Okay. And so you think that -- and
7 then is it Lauren's responsibility to see the calendar,
8 like to see, hey, tomorrow is Amy's birthday, so I've

9 got to go -- on my way in I'm going to stop and pick up
10 a cake and --
11
12 A Yes. Correct. Mm-hmm.
13 Q -- a card? And then do you pass the
14 card around for people to sign?

15 A Correct.
16 Q Okay. But -- so Lauren doesn't -- is
17 it your understanding that it's Lauren's job to

18 independently check that calendar to make sure that
19 that's covered?
20 A Correct.
21 Q Okay. And then for the -- this -- the
22 treat or whatever is purchased and the card, if there's

23 a card purchased. Are all of those just sitting in the
SUM : 000058 of 000099
24 lunchroom and then at lunch time when people come in
25 for lunch, we -- do we sing happy birthday or --

50

1 A No, we don't --
2 Q Okay.
3 A We don't sing happy birthday.
4 Q Okay. But we just -- the cake is
5 available, and then so there's --

6 A Yes.
7 Q Other than handing him a card, there's
8 really no acknowledgment of his birthday or --

9 A I -- well, what -- for our
10 accessioners, when they come in, we would decorate the

11 door or their computer and then sing happy birthday.
12 Q Okay. And that's at the beginning of
13 the day?
14 A Yeah, right when they walk in, just

15 kind of like a surprise.
16 Q Okay. Were you -- prior to Kevin's
17 birthday, which was August 7th, did anyone tell you

18 that Kevin didn't want to have -- didn't want his
19 birthday celebrated?
20 A No.
21 Q Okay. And you do know, I think you've
22 already said, that Kevin's birthday is August 7th.

23 A (Nods head)
SUM : 000059 of 000099
24 Q And then you knew it was his birthday
25 because you had gotten that information from Julie and

52

1 A Later on that day, yes.
2 Q And who -- who came to you later on

3 that day?
4 A Lauren Finn.
5 Q And what did Lauren say?

6 A "What is wrong with Kevin? He was very
7 sad, sober-faced. He didn't really want his cake that
8 I went and got for him." Because he's gluten-free, she

9 got him a special cupcake or whatever it was at that
10 time.
11 Q Okay. And so -- and do you know about
12 what of day that Lauren came to you with that
13 information?
14 A I would say maybe around 3:00 or 4:00.

15 Q Okay. And did you go talk to Kevin
16 about that that day?
17 A No.
18 Q Okay. Did you talk to anybody else
19 about what Lauren had told you at 3:00 or 4:00 in the
20 afternoon?
21 A No.
22 Q Okay. So you did not see Kevin's

23 response to the -- to the cake, but Lauren -- but
SUM : 000060 of 000099
24 Lauren had described it in the way you just -- just
25 stated, correct?
53

1 A Correct. He was in the lab that day,
2 so he was not in the accessioning room.

3 Q Okay. But you still sang happy
4 birthday to him?
5 A Yeah. He dropped his bag off --

6 Q Okay.
7 A -- in the accessioning room.
8 Q Did you have any other discussion with

9 anybody on August 7th regarding Kevin's reaction to his
10 birthday?
11 A Yes. Roger.
12 Q Who is Roger?
13 A He is a lab tech.
14 Q What's Roger's last name?

15 A I think it's Knauf.
16 Q Okay. And what conversation did you
17 have with Roger?

18 A Roger just came to me, it was later on
19 in the day, wanting to know if Kevin was all right. He
20 was very down, didn't say much, they would say
21 something to him, and he would just kind of -- you
22 know, was very quiet.

23 Q And what did you tell Roger?
SUM : 000061 of 000099
24 A At that point, I kind of knew it was
25 his birthday, so I just said "I believe he's just

54

1 having a bad day about his birthday."
2 Q Okay. And then that was the -- anybody

3 else other than that conversation with Roger?
4 A No.
5 Q So you talked to Lauren and Roger and

6 nobody else really about Kevin's birthday that day, --
7 A Correct.
8 Q -- right? Okay. And then on the

9 morning -- or August 8th, the day after his birthday,
10 you ultimately met with Kevin and sent him home,

11 correct?
12 A Correct.
13 Q Do you recall what time you met with
14 Kevin on -- on August the 8th?

15 A I don't recall, but it was probably
16 around 9:00 I'd say, when he came in, 8:30, 9:00.
17 Q So it was soon after he arrived?

18 A Correct.
19 Q Okay. Prior to sending him home --
20 well, you -- you called him into a meeting around 9:00.
21 Why did you call him into a meeting?
22 A Well, I wanted to discuss his behavior

23 the day before and see if he was all right. And then
SUM : 000062 of 000099
24 Allison had told me he had emailed her again about
25 wanting to talk, and Allison was out of the state, she

55

1 was in West Virginia for work, so I thought, well, this
2 is a good time to see what was going on and just to see

3 how we could help Kevin at this point.
4 Q Okay. Tell me -- you said you -- so
5 you had talked or communicated with Allison prior to

6 Kevin's arrival at work on the 8th?
7 A Correct.
8 Q Tell me what communication you had with

9 Allison prior to Kevin's arrival at work on August 8th.
10 A Allison had said that he had emailed

11 her stating "We need to talk about what happened when
12 you get back."
13 Q Okay. And you had -- at that point did
14 you have no -- no reference as to what he was talking

15 about -- or what she was talking about?
16 A I -- we were talking about his --
17 Q Okay.
18 A -- birthday.
19 Q Okay. So you had a -- was it a
20 telephone conversation with Allison?
21 A Correct.
22 Q Okay. When -- did she call you on the

23 7th or on the morning of the 8th?
SUM : 000063 of 000099
24 A The 8th, morning of the 8th.
25 Q Okay. Tell me everything you can

56

1 remember that was said in that conversation with
2 Allison Wimmers on the morning of August 8th.

3 A "Amy, Kevin emailed me saying that he
4 wanted to talk to me about what had happened," so I
5 said "Okay. Then I'm going to talk to Kevin this

6 morning to see what's -- what is going on and try to
7 get to the bottom of it and see if we can see what's
8 going on with Kevin."

9 Q Okay. And just again, because the way
10 you just described that conversation, there's no point

11 of reference as to what happened. Did you have some --
12 prior to Allison making that comment, did you -- did
13 you say anything about "Did you hear about Kevin's
14 reaction to his birthday party?" or I mean how did the

15 topic of Kevin's -- Kevin come up in that conversation?
16 A It was Allison saying Kevin had -- I
17 don't -- I guess I don't recall.

18 Q Okay.
19 A Because I don't -- I mean I don't
20 remember exactly word for word, but it was basically
21 saying he was upset because they celebrated his
22 birthday.
23 Q Okay. So Alan -- Allison calls you on
SUM : 000064 of 000099
24 the morning of August 8th and says "Hey, Kevin was a
25 little upset that you celebrated your -- that you

57

1 celebrated his birthday, and he sent me an email saying
2 that he is going to -- he wants to talk about it when I

3 get back"?
4 A Right.
5 Q And did you ask "Why was he upset about

6 -- why was he upset about celebrating his birthday?"
7 Did you have that discussion with Allison?
8 A Yes, I did.
9 Q What did Allison say?
10 A Pretty much because Allison forgot to

11 tell Lauren that he didn't want his birthday
12 celebrated.
13 Q And did Allison tell you why Kevin
14 didn't want his birthday celebrated?

15 A No.
16 Q Okay. So did -- and you didn't ask why
17 he didn't want to have his birthday celebrated?

18 A I don't recall.
19 Q Didn't you find that odd that somebody
20 would ask to not have their birthday celebrated?
21 A It could be a lot things, religion...
22 Q What religion doesn't celebrate

23 birthdays to your knowledge?
SUM : 000065 of 000099
24 A Jehovah Witness.
25 Q Okay. Did you know Kevin to be a

60

1 morning to go over what Lauren and Roger had said and
2 how his -- his facial expressions were yesterday. I

3 just want to make sure he's all right."
4 Q Okay. So you -- even before Kevin
5 arrived, you had planned to meet with Kevin?

6 A Correct.
7 Q Okay. And then so Kevin gets to work,
8 and you said within a few minutes of him arriving at

9 work you meet with him, correct?
10 A Correct.
11 Q And, again, this is based on your
12 conversation with Allison and your conversation with
13 Lauren and Roger?
14 A (Nods head)
15 Q Okay. So you call Kevin into a
16 meeting. Where did you meet?
17 A In the conference room.

18 Q Where is the conference room on your
19 diagram?
20 A Over here in the offices.
21 Q Okay. So you -- did you verbally ask
22 Kevin to come with you, or did you send an email, or

23 how did you communicate that you wanted to have a
SUM : 000066 of 000099
24 meeting with him?
25 A I believe I verbally asked him to step

61

1 over to the office.
2 Q Okay. And when he stepped into the

3 office, Ted was also with you?
4 A Correct.
5 Q Okay. And did you ask Ted to attend

6 that meeting?
7 A Correct.
8 Q And why did you ask Ted to attend that

9 meeting?
10 A Because I will not speak with somebody

11 by myself.
12 Q And that's just a practice you -- okay.
13 A Correct.
14 Q So you asked Ted to meet with you. Did

15 you tell Ted why you were meeting with Kevin?
16 A Yes.
17 Q You told him that before?

18 A Mm-hmm.
19 Q And what did you tell Ted?
20 A I told Ted about what Roger and Lauren
21 had said the night before and I said that Kevin is
22 upset and I believe I need to talk to him before, you

23 know, this goes any further.
SUM : 000067 of 000099
24 Q Okay. And did you have that
25 conversation with Ted also before Kevin had arrived at

62

1 work?
2 A Yes.
3 Q Okay. So you said "Hey, when Kevin
4 gets here, I'm going to -- you know..." --
5 A Can you --
6 Q -- "...can you join us because some
7 people had talked about him, I want to talk to him
8 about it"?
9 A (Nods head)
10 Q Okay. So you call Kevin into this side

11 office or this -- this conference room in the ware --
12 or in the offices, and you and Ted are present.
13 Anybody else present?
14 A No.
15 Q Okay. Tell me who, when you -- okay.
16 So Kevin walks in the office, and I assume you're the
17 first person to speak in that meeting?

18 A Yes.
19 Q Okay. And tell me what you said.
20 A Pretty -- pretty much "Kevin, I know
21 you're upset. What can I do to help you? I know
22 you've come in this morning, you are sour-faced. What

23 -- what's going on?"
SUM : 000068 of 000099
24 Q Okay.
25 A And he then said "Yesterday was really

63

1 hard on me. It's a childhood problem that I have,
2 something had happened on my birthday."

3 Q Okay.
4 A I said "Well, I'm sorry. What can I do
5 to help you?" And then he was like "I -- I feel like

6 I..." -- like he was pretty much "I have to feel --
7 like I'm suffocating and having a panic attack
8 yesterday because they celebrated my birthday, and I

9 did not want it celebrated and I had told Allison I did
10 not want my birthday celebrated."

11 So then probably maybe a minute, he got
12 really red, he started clenching his fists, and then he
13 closed his eyes. And I said "Kevin, are you all
14 right?" and he was like "Silence. Please do not talk."

15 So I just kind of sat there, I looked at Ted, and then
16 Ted had said "Kevin, I'm sorry buddy. What can we do
17 to help you?" And he then again clenched his fists,

18 red face, "Silence. Please be quiet" and he's shaking.
19 It was very scare -- I was very scared. I'm not one to
20 get scared, but that moment I really -- if I had my
21 cell phone, I probably would have called the police
22 because I was that scared.

23 Q Okay.
SUM : 000069 of 000099
24 A I had never been around somebody that
25 -- literally I thought he was going to punch me. Like

64

1 he was -- his fists were clenched. And I had never
2 seen this side of Kevin and I would never have thought

3 in a million years that he would do this.
4 So this was what was going through my
5 head, and I'm like I don't know at this point what to

6 do, but I was scared. So I said "Kevin..." -- I tried
7 to make note of this -- the situation. I said "Kevin,
8 what can I do? Like we are here to help you," and then
9 he did it again, and then I was like "I think we're
10 just going to let you gather your thoughts and me and

11 Ted are going to step outside" because I -- to my best
12 of knowledge, I needed to get out of that situation.
13 Q Okay.
14 A So we stepped outside, me and Ted, and

15 waited probably, I don't know, three to four minutes,
16 and then Ted had looked at me and said "We probably
17 need to escort him out because that was scary" and I

18 agreed. And so he got up, came out, and then we said
19 "Let's get your stuff. Why don't you just go home for
20 the day and then we'll revisit this on Monday."
21 Q Okay. So -- and that was a Thursday
22 though, correct?
23 A Yeah. Mm-hmm.
SUM : 000070 of 000099
24 Q So you were sending him home for the
25 rest of Thursday and Friday?

65

1 A Correct.
2 Q Okay.
3 A Just to gather his thoughts and try to
4 get better.
5 Q Okay.
6 A So we asked him for his key fob, Ted
7 and I both walked him to get his bag in the
8 accessioning room, and then to outside, and he left.

9 No -- he was not mean, he wasn't -- he didn't say
10 nothing. I mean he did what we told him to do.

11 Q Okay. When you were in the conference
12 room, how -- how big is the conference room?
13 A It's probably from that wall to this
14 wall and not that part.

15 Q Okay. So you would say --
16 A Maybe 12 by -- I don't know.
17 Q Seven, eight?
18 A Yeah.
19 Q And, again, I'm not --
20 A Yeah.
21 Q We can get the measurements if we need
22 to but --
23 A Right. I don't -- yeah.
SUM : 000071 of 000099
24 Q And is there a big conference table
25 like there is in this room in there?

69

1 closed his eyes, opened his eyes, looked at me dead
2 straight on, just sat there and looked at me and was

3 shaking.
4 Q Okay. And then when you walked out of
5 the office, did you -- can you do a dotted line showing

6 the path you took to leave the office when you told him
7 you were going to give him a few minutes to compose
8 himself? And when you -- so you walked sort of past

9 the side of the table he was on?
10 A Correct.
11 Q And at any point did he stand up to --
12 he didn't show -- come after you when you -- when you
13 --
14 A No.
15 Q -- went by him, or he didn't act like
16 he was going to block your path to the door in any way?
17 A No.
18 Q Okay. And then when he came out of the
19 office -- well, before he came out of the office, you
20 guys had already made your decision you were going to
21 send him home, correct?
22 A Correct.
23 Q Okay. And then I think you had already
SUM : 000072 of 000099
24 said when he came out of the office, he had calmed down
25 a little.
71

1 A And so was Allison.
2 Q So at 3:00 p.m. you -- Ted had called

3 -- or Ted had made arrangements to have a conversation
4 with Julie, you and Allison, correct?
5 A Correct. And Allison was not in the

6 office as well but was on the conference call.
7 Q Okay. So you had a conference call at
8 3:00 p.m.?
9 A (Nods head)
10 Q Okay. Prior -- prior to that -- well,

11 let me -- let me have her mark it first. Well, let's
12 mark the diagram of the conference room as Exhibit 2,
13 then I'll mark this as Exhibit 3.
14 THE WITNESS: I just -- I --

15 MS. KENNEDY: with the mask use, I
16 know, it is a little --
17 THE WITNESS: It's stuffy and I'm hot.

18 And I'm sorry.
19 MR. BUCHER: Do you want to take a
20 minute?
21 THE WITNESS: No. I'm okay.
22 MR. BUCHER: Okay. We -- we won't be

23 that long.
SUM : 000073 of 000099
24 MS. KENNEDY: Three?
25 MR. BUCHER: I think so, yeah.

80

1 Allison have any input in that meeting?
2 A Yes.
3 Q And what was Allison's input?
4 A I'm not -- I don't recall word for
5 word, but she did talk about the birthday -- and then
6 -- I'm sorry, and the emails that he had sent to her.
7 Q And did she -- did she talk that Kevin
8 had told her that he didn't want the birthday

9 celebration?
10 A Correct.
11 Q Okay. So she had let him know that --
12 and did she say that the reason Kevin didn't want it
13 was because he -- his birthday was a cause of he might
14 have a panic attack or anything like that?

15 A No.
16 Q Okay. What -- what specifically did
17 she say -- did she say why Kevin didn't want to have a
18 birthday celebration?
19 A I don't recall.
20 Q Okay. She just said that "Kevin had
21 contacted me before his birthday and said he didn't
22 want a celebration, and I forgot to tell..." --

23 A Right. Lauren.
SUM : 000074 of 000099
24 Q -- "...Lauren"? Okay. Okay. And then
25 what was the -- what was the conclusion of that

89

C-E-R-T-I-F-I-C-A-T-I-O-N
COMMONWEALTH OF KENTUCKY,
COUNTY OF KENTON, To-wit;
I, Susan K. Lee, CVR-CM, Court Reporter

and Notary Public in and for the Commonwealth of
Kentucky, do hereby certify;
That on the 30th day of June, 2020,

there appeared before me pursuant to Notice and
agreement of counsel, AMY BLACKBURN, as a witness in
the previously entitled cause;
That the said witness was sworn by me

and examined to tell the truth, the whole truth, and
nothing but the truth in said cause;
That the deposition was taken by me via

Stenomask and electronic recording and the foregoing 88
pages contain a true, full and correct transcription of
all the testimony of said witness;
That the deposition was submitted to
counsel for the witness for reading and signature;
That I am not related to or in any way
associated with any of the parties to said cause of
action, or their counsel, and that I am not interested
in the event thereof.
IN WITNESS WHEREOF, I have hereunto set
my hand this 25th day of June, 2012.
_____________________________
Susan K. Lee, CVR-CM
My commission expires:
February 27, 2022
Notary ID 595568
SUM : 000075 of 000099
EXHIBIT D


DIVISION IV
CASE NO. 19-CI-01631
KEVIN BERLING, :
Plaintiff :
-v- :
GRAVITY DIAGNOSTICS, LLC, :
Defendant :
- 0 -
The deposition of ALLISON WIMMERS, taken before

Melea E. Chaney, Court Reporter, at the law offices of
Bonar, Bucher & Rankin, PSC, 3611 Decoursey Avenue,
Covington, Kentucky, on the 30th day of June, 2020,
beginning at the hour of 11:00 a.m. and ending at 11:54
a.m. of the same date.
- 0 -
RIVERSIDE REPORTING
Certified Court Reporters
3238 Hildreth Avenue
Cincinnati, OH 45211
sueriverside@gmail.com
SUM : 000077 of 000099
(513)325-0559
26

1 what time of day that was that he came to your office?
2 A I believe it was the end of the day.

3 Q Okay. And that would have --
4 A I believe it was a Friday.
5 Q And that would have been after Amy had

6 already left?
7 A Yes.
8 Q Okay. So he came to you in your office

9 at the end of the day. And tell me what he said or
10 requested.
11 A He stood in the doorway. I was sitting
12 at my desk. And he said "Can I talk to you for a
13 second?" I said "Yes, absolutely." He came in, shut
14 the door, sat down, said "I would really rather not
15 celebrate my birthday. It has bad memories for me."
16 And I said "Oh, I'm so sorry. Is there anything I can
17 do personally?" I was trying to be very accommodating

18 and be supportive to him. And I said "I know you're
19 gluten free, is there any way I could personally just
20 get you a little something and hide it on your desk and
21 nobody needs to know?" And he said "No, I'm -- I'm
22 good. I -- I really don't like celebrating my

23 birthday." I said "Well, I hope one day your birthday
SUM : 000078 of 000099
24 is a positive memory instead of negative," and then he
25 proceeded to tell me why his birthday was a negative,

28

1 A No.
2 Q Okay. You knew -- at that time, you

3 knew that it was Lauren's responsibility to prepare
4 birthday celebrations, right?
5 A Yes.
6 Q Why didn't you have a discussion with
7 Lauren about -- about Kevin's request?
8 A It was at the end of the day on Friday,

9 so we were all just leaving work for that day.
10 Q Well, why didn't you have that

11 conversation with Lauren on Monday?
12 A I was not present on Monday.
13 Q Okay. What about Tuesday?
14 A I was not present on Tuesday.

15 Q What about Wednesday?
16 A At that point, his birthday had already
17 passed.
18 Q What -- what, if anything, did you do
19 to accommodate his request that his birthday not be
20 celebrated?
21 A Honestly, I feel really bad about it,
22 because I totally forgot to tell Lauren to not

23 celebrate it. It was an honest mistake.
SUM : 000079 of 000099
24 Q Okay. Did you suggest -- when Kevin
25 told you that in this meeting, did you ever suggest to

29

1 Kevin that he should talk to Lauren directly or anybody
2 else?
3 A No.
4 Q Because at that time it was your intent
5 to -- to talk to Lauren and make sure that it didn't

6 happen, correct?
7 A Absolutely, yes.
8 Q Okay. In the course of that

9 conversation with Kevin about why he didn't want his
10 birthday, did he tell you that it caused -- it could

11 cause a panic attack?
12 A No.
13 Q Did he ever use the words panic attack
14 with you in that meeting on August 2nd, that Friday?

15 A No.
16 Q Okay. So if he says that he told you
17 that it could cause a panic attack, you would say --

18 you would agree that that's a disputed issue of fact,
19 correct?
20 A Yes. That was never said.
21 Q Okay. You were -- you said you were
22 out of the office the next week?

23 A Yes.
SUM : 000080 of 000099
24 Q Where were you?
25 A West Virginia.
31

1 A -- I came in at the end of the week
2 when everything had already occurred.

3 Q So -- so when you returned back to the
4 office, Kevin had already been sent home?
5 A Yes.
6 Q Okay. Is this -- you've just been
7 handed Exhibit 2 to your deposition. Is this the --
8 the teams message that you were talking about before?

9 A Yes.
10 Q Okay. This is the one document that

11 you reviewed in preparation for your deposition today?
12 A Yes.
13 Q Okay. This is -- so it appears that
14 Kevin -- was -- was this message at the top, was this

15 the first of the communications between you two --
16 A Yes.
17 Q -- on this -- on this day? Okay. It

18 says "I thought we came to an understanding that
19 nothing was going to be done for my birthday. I'm a
20 little upset that there are still birthday things
21 around." And then it looks like this one was sent
22 immediately after, because there's no time change. "I

23 honestly don't know if I can come back into work
SUM : 000081 of 000099
24 today." This is dated August 7th at 12:28 p.m. Do you
25 know about when you received this?

49

C-E-R-T-I-F-I-C-A-T-I-O-N
COMMONWEALTH OF KENTUCKY,
COUNTY OF KENTON, To-wit;
I, Susan K. Lee, CVR-CM, Court Reporter

and Notary Public in and for the Commonwealth of
Kentucky, do hereby certify;
That on the 30th day of June, 2020,

there appeared before Melea E. Chaney, court reporter,
pursuant to Notice and agreement of counsel, ALLISON
WIMMERS, as a witness in the previously entitled cause;
That the said witness was sworn by me,

Susan K. Lee, notary public for the Commonwealth of
Kentucky, and examined to tell the truth, the whole
truth, and nothing but the truth in said cause;
That the deposition was taken by Melea
E. Chaney via Stenomask and electronic recording and
the foregoing 48 pages contain a true, full and correct
transcription of all the testimony of said witness;
That the deposition was submitted to
counsel for the witness for reading and signature;
That neither I nor Ms. Chaney are
related to or in any way associated with any of the
parties to said cause of action, or their counsel, and
that I am not interested in the event thereof.
IN WITNESS WHEREOF, I have hereunto set

my hand this 25th day of June, 2021.
_____________________________
Susan K. Lee, CVR-CM
My commission expires:
February 27, 2022
SUM : 000082 of 000099
Notary ID 595568
EXHIBIT E

User Name: Kate Kennedy
Date and Time: Thursday, August 19, 2021 10:40:00 AM EDT
Job Number: 150955160
Document (1)
1. Wagner's Pharm., Inc. v. Pennington, 2015 Ky. Unpub. LEXIS 25

Client/Matter: 050127.000413
Search Terms: 2015 Ky. Unpub. LEXIS 25
Search Type: Natural Language
Narrowed by:
Content Type Narrowed by
Cases -None-
SUM : 000084 of 000099
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2021 LexisNexis
Kate Kennedy
Wagner's Pharm., Inc. v. Pennington
Supreme Court of Kentucky
May 14, 2015, Rendered
2013-SC-000541-DG
Reporter
2015 Ky. Unpub. LEXIS 25 *; 31 Am. Disabilities Cas. (BNA) 1058
WAGNER'S PHARMACY, INC., APPELLANT v.

MELISSA K. PENNINGTON, APPELLEE Opinion
Notice: THIS OPINION IS DESIGNATED "NOT TO BE

PUBLISHED." PURSUANT TO THE RULES OF CIVIL
PROCEDURE PROMULGATED BY THE SUPREME MEMORANDUM OPINION OF THE COURT
COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO
BE PUBLISHED AND SHALL NOT BE CITED OR
USED AS BINDING PRECEDENT IN ANY OTHER REVERSING
CASE IN ANY COURT OF THIS STATE.
Appellee, Melissa K. Pennington, alleged that Appellant,
Subsequent History: Rehearing denied by, Substituted Wagner's Pharmacy, discriminated against her by
opinion at Wagner's Pharm., Inc. v. Pennington, 2015 terminating her employment due to her morbid obesity.
Ky. LEXIS 1879 (Ky., Sept. 24, 2015) The trial court determined that the testimony of
Pennington's medical expert failed to establish a
Prior History: [*1] ON REVIEW FROM COURT OF physiological cause for her obesity and granted
APPEALS. CASE NO. 2012-CA-0000573-MR. Wagner's motion for summary judgment. The Court of
JEFFERSON CIRCUIT COURT NO. 07-CI-05314. Appeals concluded that Pennington had established a
prima facie case of disability discrimination, vacated the
trial court's order of summary judgment and remanded
Pennington v. Wagner's Pharm., Inc., 2013 Ky. App. for further proceedings. This Court granted discretionary
Unpub. LEXIS 1004 (Ky. Ct. App., July 12, 2013) review to consider whether a physician's testimony
about the cause of morbid obesity in general — not
specific to the plaintiff — is sufficient to establish a
Core Terms
prima facie case of disability discrimination under the
Kentucky Civil Rights Act. We conclude it is not.
obesity, impairment, morbid, disability, physiological,
Accordingly, we reverse the decision of the Court of
trial court, disorder, prima facie case, terminated, major
Appeals and reinstate [*2] the trial court's order of
life activity, deposition, summary judgment, appearance,
summary judgment.
sales, substantial limitation, co-workers, factors, genetic,
weighed, truck, disability discrimination, summary Pennington was employed by Wagner's Pharmacy. On
judgment motion, environmental, neuro-humeral, or about April 26, 2007, 1 Pennington's supervisor,
backside, diabetes, disease, hearsay, pounds Martha Parrish, notified Pennington that her
SUM : 000085 of 000099
employment was terminated. At that time, and during

Counsel: COUNSEL FOR APPELLANT: Brian Edward
the preceding ten years Pennington worked for
Clare, Louisville, KY.
COUNSEL FOR APPELLEE: Philip Clyde Kimball,
Louisville, KY. 1 Both the Complaint and Answer reflect that Wagner's
terminated Plaintiffs employment on April 26, 2006; however,
Judges: All sitting. All concur. the date is referred to as April 26, 2007, in Wagner's Motion
for Summary Judgment, Pennington's Response, and in the
decisions of the Circuit Court and Court of Appeals.
Kate Kennedy
Page 3 of 9
Wagner's, she weighed approximately 425 pounds. She work looking like that.
is 5'4" tall.

Ms. Parrish testified ... that Ms. Smyth told her to
On July 7, 2007, Pennington filed a complaint in terminate Plaintiff, because of Plaintiffs "personal
Jefferson Circuit Court alleging that "Wagner's appearance." Ms. Parrish denies that it had
discriminated against her because of her disability or anything to do with Plaintiff being obese. However,
handicap, and/or because of a false perception of a Plaintiffs co-worker, Vicki Young, asserted that
disability or handicap," in violation of KRS 207.150 and Parrish stated Ms. Smyth "asked" Ms. Parrish to
KRS 344.040. On June 3, 2011, Wagner's filed a motion terminate Plaintiff due to Plaintiff being "dirty,
for summary judgment contending that Pennington overweight, and [because she] could not do her
could not produce evidence that she had or was job." Likewise, another co-worker, Tanya Calfee,
perceived to have a disability as defined in the statute. asserted that Ms. Parrish was crying on the day
The Circuit Court granted Wagner's' motion for Plaintiff was terminated, and told Ms. Calfee that
summary judgment in a detailed Memorandum and Ms. Smyth "instructed" Ms. Parrish to fire Plaintiff
Order entered October 21, 2011: [*3] "'because [*5] of [Plaintiffs] weight, and because
Plaintiff ... was the sole operator of a food and drink she was dirty', and [Ms. Parrish] could not bring
concession truck owned by Defendant. Plaintiff herself to do it."
parked the truck on the backside area of Churchill ....
Downs, and was responsible for generating food
and concession sales. Plaintiff was employed for Defendant argues that Plaintiff cannot establish a
about ten years in association with the trackside prima facie case of disability discrimination, since
food concession ... with Defendant as her she cannot establish that she is disabled as a
employer, Martha Parrish as her supervisor, and matter of law. The Kentucky Civil Rights Act, KRS
Brenda Smyth as the owner's manager. 344.040(1), provides, pertinently, that it is unlawful
Plaintiff weighed 425 pounds and was 5'4" tall "to discharge any individual, or otherwise to
during her employment with Defendant. Plaintiff discriminate against an individual with respect to
also suffered from diabetes, and often presented compensation, terms, conditions, or privileges of
with a classic, raccoon like darkening around her employment, ... [when] the person is a qualified
eyes, perhaps giving her a "dirty" appearance. individual with a disability..." KRS 207.150(1)
Despite the fact that she was extremely obese, provides, pertinently:
Plaintiff could perform and did perform the essential No employer shall fail or refuse to hire,
functions of her job with Defendant. discharge, or discriminate against any
individual with a disability with respect to
However, sales on the backside declined wages, rates of pay, hours, or other terms and
significantly and the general condition of the truck conditions of employment because of the
necessitated that it be repaired or replaced. person's physical disability unless the disability
Defendant believed that the decline in sales was restricts that individual's ability to engage in the
due in part to a failure of Plaintiff to generate particular job or occupation for which he or she
sufficient sales to justify continued use of the truck is eligible, ....
on the backside. Defendant allegedly received
information showing that Plaintiff failed to move the "The plaintiff bears the initial burden of establishing
vending [*4] truck to different locations on the a prima facie case of disability discrimination
backside to generate more sales. On or about April against the defendant." Hallahan v. The Courier-
26, 2007, Defendant, through Plaintiffs supervisor, Joumal, 138 S.W.3d 699, 706 (Ky. App. 2004).
Martha Parrish, orally informed Plaintiff that her
In order to establish a prima facie case of
SUM : 000086 of 000099
employment was terminated.

Once, just before she was terminated, Plaintiff had discrimination based on a disability, the [*6]
come to work on her day off, while she was moving plaintiff must show: (1) that [she] had a
her residence, to pick up her paycheck. The disability as that term is used under the statute
owner's manager, Brenda Smyth, whom Plaintiff (i.e. the Kentucky Civil Rights Act in this case);
rarely encountered, saw Plaintiff come in the office. (2) that [she] was "otherwise qualified" to
On that day, Plaintiff was dirty and not in her best perform the requirements of the job, with or
appearance. Plaintiff testified that she never went to without reasonable accommodation; and (3)
Kate Kennedy
Page 4 of 9
that [she] suffered an adverse employment (ii) Significantly restricted as to the condition,
decision because of the disability. manner or duration under which an individual

can perform a particular major life activity as
Id. at 706-07. Under KRS 344.010(4), "disability," compared to the condition, manner, or duration
with respect to an individual, is defined as: under which the average person in the general
(a) A physical or mental impairment that population can perform that [*8] same major
substantially limits one (1) or more of the major life activity.
life activities of the individual;
(b) A record of such impairment; or 29 C.F.R. §1630.2(j)(1). The following factors
(c) Being regarded as having such an should be considered in determining whether an
impairment. individual is substantially limited in a major life
activity:
The determination of whether Plaintiff has an (i) The nature and severity of the impairment;
impairment and whether the conduct affected by (ii) The duration or expected duration of the
the impairment is a major life activity under the impairment; and
statute are questions of law. Hallahan, 138 S.W.3d (iii) The permanent or long term impact, or the
at 707. The ultimate determination of whether the expected permanent or long term impact of or
impairment substantially limits a major life activity resulting from the impairment.
generally is a factual issue for the jury, but may be
resolved upon summary judgment under the 29 C.F.R. §1630.2(j)(2).
appropriate circumstances. Id.
A medical diagnosis of impairment is not enough;
"The Kentucky Civil Rights Act was modeled after instead, Plaintiff must show "that the extent of the
federal law, and our courts have interpreted the limitation [caused by her impairment] in terms of
Kentucky Act consistently therewith." Howard Baer, [her] own experience ... is substantial." Toyota
Inc. v. Schave, 127 S.W.3d 589, 591 (Ky. 2003), Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198,
citing, Bank One, Kentucky N.A. v. Murphy, 52 122 S. Ct. 681, 151 L.Ed[.]2d 615 (2002), quoting,
S.W.3d 540, 544 (Ky. 2001). Under the Equal Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567,
Employment Opportunity [*7] Commission 119 S. Ct. 2162, 144 L. Ed.2d 518 (1999). "[A]n
("EEOC") Regulations, interpreting the Americans individual must have an impairment that prevents or
with Disabilities Act ("ADA"), "physical or mental severely restricts the individual from doing activities
impairment" means: that are of central importance to most people's daily
(1) Any physiological disorder, or condition, lives. The impairment's impact must also be
cosmetic disfigurement, or anatomical loss permanent or long term." 534 U.S. at 198. The
affecting one or more of the following body existence of a disability is to be determined on a
systems: neurological, musculoskeletal, special case-by-case basis. Id.
sense organs, respiratory (including speech
organs), cardiovascular, reproductive, "[T]he ADA guidelines suggest that obesity is rarely
digestive, genito-urinary, hemic and lymphatic, considered a disabling impairment ...." Greenberg
skin and endocrine; or v. BellSouth Telecommunication, Inc., 498 F.3d
(2) Any mental or psychological disorder, such 1258, 1263 (11th Cir. 2007). See, 29 C.F.R.
as mental retardation, organic brain syndrome, §1630.2. Courts have uniformly held that obesity is
emotional or mental illness, and specific not a qualifying impairment, or disability, unless it is
learning disabilities. shown to be the result of a physiological disorder.
See, EEOC v. Watkins Motor Lines, Inc., 463 F.3d
29 C.F.R. §1630.2(h). "Major Life Activities means
SUM : 000087 of 000099
436, 440-443 (6th Cir. 2007) ("we hold that to [*9]

functions such as caring for oneself, performing constitute an ADA impairment, a person's obesity,
manual tasks, walking, seeing, hearing, speaking, even morbid obesity, must be the result of the
breathing, learning, and working." 29 C.F.R. physiological condition."); Francis v. City of
§1630.2(i). The term "substantially limits" means: Meriden, 129 F.3d 281, 286 (2d Cir. 1997)
(i) Unable to perform a major life activity that ("obesity, except in special cases where the obesity
the average person in the general population relates to a physiological disorder, is not 'physical
can perform; or impairment' within the meaning of the [ADA]
Kate Kennedy
Page 5 of 9
statutes."); Coleman v. Georgia Power Co., 81 reasonable specificity, a reason unrelated to a

F.Supp.2d 1365, 1369 (N.D.Ga. 2000) (same).... discriminatory motive and is not required to

persuade the trier of fact that the action was lawful."
Pennington relied upon Dr. Gaar, a board-certified Kentucky Center for the Arts v. Handley, 827
surgeon who has performed nearly 2,000 gastric S.W.2d 697, 700 (Ky. App. 1991), citing, Texas
bypasses, to show that her morbid obesity was the Dep't of Community Affairs v. Burdine, 450 U.S.
result of a physiological condition. The trial court 248, 258, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981).
concluded that Pennington did not meet her burden:
[N]owhere in Dr. Garr's deposition is there The trial court determined that Wagner's had articulated
testimony that there is a physiological cause for such a reason, "that Appellee was terminated because
Plaintiff's obesity. of her personal appearance." In addition, in its response
to Plaintiff's Interrogatory No. 3, Defendant stated that
The fact that the obesity is accompanied by one or sales on the backside for which Appellee was
more subsequent physiological conditions is not responsible had declined significantly, and that it
determinative of whether the obesity will be believed the decline was due in part to Appellee's failure
considered a qualified disability. Dr. Gaar's expert to generate sufficient sales to justify continued use of
testimony does not establish that Plaintiff's morbid the concession truck. The trial court also noted Parrish's
obesity has a physiological cause. As such it does testimony that Ms. Smyth told her to let Pennington go
not appear that Plaintiff can establish that her due to complaints about her personal appearance, but
obesity will be considered a qualified disability. that Parrish denied it had anything to do with obesity.
Furthermore, even if Plaintiff had proven that her The trial court concluded that Defendant met its burden
obesity was a qualified disability, there is nothing of of refuting the prima facie case.
an evidentiary nature in the record [*10] which
establishes that she was substantially limited in Having determined that the statements in the affidavits
conducting "major life activities" prior to and at the of co-workers Young and Calfee were inadmissible
time of her termination. hearsay, the trial court concluded that it does not appear
that Pennington "can establish that Defendant's
Pennington also argued that she had established a articulated [*12] reason for terminating Plaintiff was
prima facie case of discrimination because she was pretext to cover actual discrimination."
"regarded as" having a disability. The trial court
disagreed. "The record is undisputed that Appellee The trial court noted Plaintiff's (oral) argument to apply a
weighed the same at the time of her termination as she "mixed-motive" analysis, and explained that under
did when she was hired by Defendant." The trial court "Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814,
determined that the affidavits (of co-workers Vicky 821 (Ky. 1992), ... "the party alleging discrimination
Young and Tanya Calfee) which Appellee submitted to must show that the discriminatory motive 'was a
establish she was fired due to her obesity were contributing and essential factor' and not whether the
inadmissible hearsay. Further, "Appellee's deposition employer's action was taken 'solely because of the
and affidavit do not even infer that she was 'regarded discrimination. Meyers, 840 S.W.2d at 823." The trial
as' having a disability. Likewise, the deposition court determined that Pennington could not make the
testimony of Martha Parrish reflects that Plaintiff was not requisite showing, because her "case primarily relies
'regarded as' having a disability." upon inadmissible hearsay...."
The trial court determined that "Appellee has failed to Pennington filed a Motion to Alter, Amend or Vacate
establish she had a qualified disability to establish a which was denied by Order of March 2, 2011.
prima facie case," but explained it would proceed as if
she had: Pennington appealed to the Court of Appeals. By
SUM : 000088 of 000099
Opinion rendered July 12, 2013, the Court of Appeals

[T]he burden then shifts to Defendant to establish a vacated the trial court's order of summary judgment and
legitimate, nondiscriminatory reason for the adverse remanded for further proceedings, because "it was clear
action. See, McDonnell Douglas Corp. v. Green, error for the trial court to find that Pennington's condition
411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d did not have an underlying physiological cause." 2
668 (1973). "[T]he burden of refuting the prima facie
case need not be met [*11] by persuasion; the
employer need only articulate with clarity and 2 The Court of Appeals noted the Americans with Disabilities
Kate Kennedy
Page 6 of 9
The record includes the deposition of Dr. Edwin "Pennington has a disability according to law, and she
Gaar, who has performed thousands of bariatric has established a prima facie case of discrimination."

(weight loss) surgeries. Dr. Gaar testified in detail The Court of Appeals agreed with Pennington that there
as to the causes of morbid obesity. He stated that was "a genuine question of fact as to the true reason for
while the exact cause is not known [*13] and her dismissal: whether she was dismissed because of
varies from patient to patient, morbid obesity is her personal appearance or whether the alleged failure
to generate sales was pretextual."
a metabolic disease of diverse etiologies
involving genetic neuro-humeral, environ- The Court of Appeals also considered [*15] the issue of
mental [sic] that all come together to result in a the co-workers' affidavits and stated that they are
condition of decreased energy utilization and examples of double hearsay, "admissible if each part is
increased fat storage, and that in itself sets off admissible pursuant to an exception to the exclusion
a cascade of dominos leading to a host of against hearsay. Kentucky Rules of Evidence (KRE)
other co-morbidities[.] 805." The Court of Appeals determined that Smyth's
statement to Parrish (Pennington's supervisor) was
He clarified that neuro-humeral means admissible under KRE 801A(b)(4) as an admission by a
"dysregulation of hormones, dysregulation of sibling party, and that "KRE 801A(a)(1) applies to Parrish's
cytokines within the body which stimulate or statement to the co-workers" which permits
suppress appetite." Before the end of the consideration of a prior inconsistent statement of a
deposition, Dr. Gaar reiterated that "morbid obesity witness.
like [Pennington's] is caused by a cluster of often
unknown physiological abnormalities and that We granted Wagner's' Motion for Discretionary Review
morbid obesity like hers is in itself an abnormal to consider whether a physician's testimony about the
physical condition or disease. (Emphases added.) cause of morbid obesity in general — not specific to the
.... plaintiff — is sufficient to establish a prima facie case of
disability discrimination under the Kentucky Civil Rights
We must also determine whether her impairment Act.
has affected one or more of the body systems as
enumerated in 29 C.F.R. §1630.2(h)(1). Pennington Wagner's argues that Pennington is not disabled under
has developed diabetes, which is as a result of the KRS 344.010(4)(a) as a matter of law because she
morbid obesity according to Dr. Gaar's testimony. cannot prove that her obesity is the result of a
Diabetes is a disorder of the endocrine system, a physiological condition and that she is not disabled
major body system as set forth by regulation. under KRS 344.010(4)(c) because Wagner's did not
Therefore, Pennington has established that her perceive her as having a substantially limiting
morbid obesity is an impairment contemplated by impairment. Pennington contends that she submitted
the statutory [*14] scheme and has established sufficient proof of a prima facie case under either KRS
that merely being overweight is not a disability in 344.010(4)(a) or KRS 344.010(4)(c) to survive a motion
itself. for summary judgment.
The Court of Appeals next considered "whether Because this case was decided [*16] on a motion
Pennington's impairment substantially limits one (or for summary judgment, we must first review the
more) major life activity. KRS 344.010(4)." In light of applicable standards of appellate review for such
Pennington's sleep apnea, Dr. Garr's testimony that cases. Summary judgment is an extraordinary
hygiene and simple activities such as tying one's shoes remedy to be used only "to terminate litigation
are difficult for morbidly obese persons, that morbid when, as a matter of law, it appears that it would be
obesity shortens life expectancy by approximately impossible for the respondent to produce evidence
SUM : 000089 of 000099
fifteen years and that most morbidly obese persons at trial warranting a judgment in his favor against
cannot lose weight without drastic intervention such as the movant." Under Kentucky Rules of Civil
bariatric surgery, the Court of Appeals concluded that Procedure (CR) 56.03, summary judgment is
appropriate when "there is no genuine issue as to
Act Amendments Act of 2008 ("ADAAA"), and that the any material fact and that the moving party is
amendments indicate a trend in the law to treat morbid obesity entitled to a judgment as a matter of law."
as a disability per se, but that they are not retroactive and do The review of summary judgment on appeal does
not apply to this case. not involve fact finding. Only legal questions must
Kate Kennedy
Page 7 of 9
be resolved. So we review the issue de novo with A. Right. It's a multifactorial metabolic disease.
no obligation to offer the trial court's decision

deference. Dr. Garr testified "Nobody has been able to elucidate
the cause of anybody's morbid obesity anywhere in the
Dick's Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, world, but I can tell you it's the easiest diagnosis to
894-95 (Ky. 2013), as corrected, (Nov. 25, 2013) make, because all you have to do is look at somebody."
(citations omitted). Dr. Garr explained that environmental factors play a
role, "because we are a society that likes to sell and
The decisions of the trial court and the Court of Appeals, consume cheap, high caloric foods that have poor
quoted above, provide a thorough discussion of the nutritional value. Obesity is an epidemic which is
applicable law. increasing in proportion not only in the United States but
on a worldwide basis." Dr. Garr could not say what
Dr. Garr, Pennington's sole expert witness, never environmental factors may have contributed to
treated or examined her. He had met Pennington briefly Pennington's obesity -- "I'm giving you a general cause
on one occasion, the day before his deposition. Dr. that's been well accepted amongst all cases of obesity."
Gaar testified that he had "looked over her hospital Dr. Garr did not know of any genetic disorders that
records from Suburban Hospital which took about five Pennington may have. Asked about neuro-humeral
minutes." Those [*17] records were all from treatment disorders, Dr. Garr testified that Pennington had "not
rendered in 2011, in relation to gastric bypass surgery been evaluated for those, [*19] nor are those clinically
which Pennington underwent on March 15, 2011. Dr. used in medicine."
Garr did not review any of her prior medical records, nor
did he consult with any of her physicians. Although recent medical records reflected that
Pennington needed a C.P.A.P. machine for sleep
Dr. Garr opined that Pennington had a classic case of apnea, Dr. Garr did not know if she had sleep apnea in
super morbid obesity. He testified that she would have 2006, nor what her co-morbidities were in 2006. Dr.
been considered to be super obese based upon her Garr did not know Pennington's work history for the last
B.M.I. (body mass index) at the time of her 2011 gastric ten years, he did not know if she had any difficulty with
bypass surgery. Dr. Garr did not know what any job because of her weight, he did not know if she
Pennington's B.M.I. was when she worked for Wagner's, had ever been placed on any restrictions because of her
although he testified that Pennington told him she weight, nor did he know specifically if Pennington had
weighed 416 to 425 pounds at that time. any limitations to her activities of daily living because of
her weight.
Dr. Garr was asked about the cause of Pennington's
morbid obesity: Pennington testified that none of her doctors ever told
Q. My question is, what produced it? her that there was a physiological basis for her obesity.
A. Boy, if you could tell me the answer to that we
would both get rich. I can't tell you that there is a In Coleman v. Georgia Power Co., 81 F. Supp. 2d 1365,
common theme or a common cause that goes 1369-70 (N.D. Ga. 2000), 4 noted by the trial court, the
through anybody. parties disputed whether the plaintiffs morbid obesity
constituted an impairment under the ADA. There, the
It's a metabolic disease of diverse etiologies
plaintiff relied upon the deposition of Dr. Dunbar:
involving genetic neuro-humeral, 3 environmental
that all come together to result in a condition of Dr. Dunbar's deposition however is somewhat
decreased energy utilization and increased fat ambiguous. When asked whether he would "agree
storage, and that in itself sets off a cascade of that morbid obesity would be a physiological
dominos leading to a host of other co-morbidities a disorder or condition affecting one or more of the
SUM : 000090 of 000099
lot [*18] of which she has. following body systems including neurological,
Q. Let's isolate some of that. You said that it was a
confluence of different factors, one being
environmental?
4 Coleman was decided before the ADAAA took effect. See
Lowe v. Am. Eurocopter, LLC, No. 1:10CV24-A-D, 2010 U.S.
3 According to Dr. Garr, neuro-humeral means "dysregulation Dist. LEXIS 133343, 2010 WL 5232523 (N.D. Miss. Dec. 16,
of hormones, dysregulation of cytokines within the body which 2010). As noted by the Court of Appeals, the ADAAA is not
stimulate or suppress appetite." retroactive and does not apply to this case.
Kate Kennedy
Page 8 of 9
musculoskeletal, special sense organs, respiratory, know of any genetic disorders she may have and he
cardiovascular, [*20] reproductive, digestive testified that she was not evaluated for neuro-humeral

genitourinary, hemic, and lymphatic, skin and disorders. Pennington testified that none of her doctors
endocrine systems, ... the doctor responded "In that had ever told her there was a physiological basis for her
general application, yes." However, Dr. Dunbar obesity. 5 Pennington has not met her burden of showing
never agreed that such was so with respect to his that morbid obesity is a physical impairment.
application of the term morbid obesity to Plaintiff. In
his report, Dr. Dunbar found Plaintiffs heart, Absent a physiological cause for her morbid obesity,
peripheral vessels, abdomen, genitalia, prostate, Pennington cannot prevail. In EEOC v. Watkins, 463
musculoskeletal and neurological systems normal F.3d 436 (6th Cir. 2006), 6 the EEOC alleged that
and his chest clear to auscultation and percussion. Stephen Grindle had been discharged by Watkins due
However, at the deposition, Dr. Dunbar explained to his morbid obesity in violation of the ADA. Grindle did
that morbid obesity can cause the onset of not know of a physiological cause for his obesity.
pathologic conditions such as diabetes mellitus....
He indicated that Plaintiff had diabetes mellitus, The EEOC ... argued that Grindle had an actual
affecting the endocrine system, and hyperlipidemia, impairment - morbid obesity - [*24] that was
an elevation of blood fats, the long-term effect of regarded, albeit erroneously, as affecting his ability
which may accelerate the rate of peripheral to do his job. Thus, to be successful when pursuing
vascular disease and lead to a stroke, heart attack a "regarded as" claim, an employee must allege
or kidney failure for example. that he was perceived to have an impairment
protected by the ADA (rather than a disability not
While it appears that Plaintiffs obesity may have
affected his bodily systems, it is less clear whether
his obesity was a "physiological disorder." Despite 5 Nor can we agree that Pennington's obesity substantially
Dr. Dunbar's answer above, when asked whether limits one or more of her major life activities. The Court of
Mr. Coleman had any kind of medical condition Appeals concluded that it did, in part, because Pennington
which caused him to weigh 339 pounds, the doctor suffers from sleep apnea which causes difficulty breathing
during sleep. Dr. Gaar was asked if he noticed "at least in
answered [*21] "no." .... [The court explained by
recent history" that Pennington needed a breathing machine
way of footnote that Dr. Dunbar acknowledged that
for sleep. Although Dr. Gaar testified "it would be almost
obesity could be caused by genetic factors, and
impossible to think that she would not have sleep apnea just
that Coleman had a family history of obesity, but Dr. based on her B.M.I.," Dr. Gaar only knew what Pennington's
Dunbar did not conduct any testing to determine if co-morbidities were at the time of her bypass surgery in 2011.
Colman's obesity was due to a genetic disorder.] The record does not reflect that Pennington actually had sleep
Additionally, Plaintiff does not recall any of his apnea or used a C.P.A.P. machine during the time she
doctors ever giving him any medical reason to worked [*23] for Wagner's. The Court of Appeals also noted
explain why he was overweight.... Although this Dr. Gaar's testimony that hygiene and simple activities such as
court will not say that morbid obesity cannot be tying one's shoes are difficult for persons with morbid obesity.
shown to be a physical impairment in some cases, Dr. Gaar's general testimony does not establish that
having applied the above standard to the facts of Pennington had any difficulty caring for herself. Dr. Gaar did
not speak with her about it. He testified that he was not
this case, the court finds that Plaintiff has not met
prepared to offer any testimony specific to Pennington's
his burden of showing that his morbid obesity is a
activities of daily living. Pennington testified by deposition that
physical impairment as he has not shown that it is a
there was never a time she was unable to do her job at
"physiological disorder." Wagner's due to her weight. In her affidavit, Pennington states
that she is a good worker, capable of doing her job, with good
Id., at 1369-70 & n.4 (footnotes omitted). grooming. Although her appearance on the day she went in to
SUM : 000091 of 000099
pick up her paycheck was not at its best, it was because she
Dr. Garr's generic testimony about morbid obesity does had been moving (her residence) and she never went in to
not establish that Pennington's obesity is the result of a work looking like that.
physiological disorder. Dr. Gaar testified about various
factors involved in morbid obesity, but nothing [*22] he 6 Superseded by Statute, See BNSF Ry. Co. v. Feit, 2012 MT
testified about was specific to Pennington. Dr. Gaar did 147, 365 Mont. 359, 281 P.3d 225 (2012), noting that Watkins
not identify any medical condition which caused was decided before Congress' passage of the ADAAA. As
Pennington to weigh over 400 pounds. Dr. Garr did not noted above, the ADAAA is not retroactive and does not apply
to this case.
Kate Kennedy
Page 9 of 9
named in the ADA that is perceived by the

employer to be limiting). Thus we must determine

whether non-phyiologically caused morbid obesity
is an ADA impairment.
....
...[W]e hold that to constitute an ADA impairment, a
person's obesity, even morbid obesity, must be the
result of a physiological condition.
Since we find that Grindle has not shown that he
suffers from an ADA impairment, we do not address
whether Watkins perceived Grindle as substantially
limited in any major life activities.
Id. at 440-41, 443 (footnotes omitted).
We conclude that Pennington has not met her burden of

proving that she suffers from an impairment under KRS
344.010(4). We reverse the decision of the Court of
Appeals and reinstate the summary judgment of the trial
court.
All sitting. All concur.
End of Document
SUM : 000092 of 000099
Kate Kennedy
EXHIBIT F

Gravity Diagnostics Employee Handbook 9.24.18 v2
Employee Handbook
1
The Company strives to fill open and newly created positions within the Company through
employee promotions, transfers, and lateral moves. The Company encourages employees to apply
for internal positions and welcomes the opportunity to evaluate their qualifications.
When practical and appropriate, the Company may post open positions in a variety of ways, such
as:
• Postings in employee break rooms

• Job listings kept by Human Resources
• Company website
• Via Company Email
The Company reserves the right, on a case-by-case basis, to determine what open positions shall
be posted and the timing for such postings. The Company expressly reserves the right not to post
executive-level positions.
Employees who have performed their current position, competently, for at least six (6) months are
eligible to apply for a promotion, transfer, or lateral move within the Company. If you are interested
in applying for a promotion, transfer, or lateral move, you should contact your immediate supervisor.
To be considered for an open position, you must meet the minimum requirements for the position
and be able to perform the essential functions of the job with or without reasonable accommodation.
The Company will evaluate your application based on your attendance record, past performance,
specialized background for the open position, and other skills that meet the needs of the position.
Because the Company is an equal opportunity employer, the Company considers all qualified
applicants for open positions and shall choose the applicant whom the Company believes is best
suited for that position.
If you apply for a position and are not chosen, the Company encourages you to apply for future
positions when they become available. The Company reserves the right to promote or transfer any
employee who has performed at an exceptional level, regardless of how long the employee has
been employed with the Company.
PROPER CONDUCT AND D ISCIPLINE
Employees are expected to conduct themselves in an appropriate manner. While the Company
reserves the right to terminate an employee’s employment-at-will for any reason not prohibited
under federal, state or local law, employees should be aware that disciplinary actions up to and
including immediate dismissal, may result from the following:
SUM : 000095 of 000099
• Poor work performance;

• Excessive absenteeism, or absence from work without permission from or notification of
the employee’s supervisor;
• Excessive tardiness;
Gravity Diagnostics Employee Handbook

14
• Disorderly conduct, misconduct while on the job, or misconduct off the job that has a
material adverse effect on the Company;
• Insubordination, including refusal to perform assigned work or job duties;
• Failure to abide by the rules of the Company;
• Harassment or discrimination of fellow employees, clients, customers or other persons
performing services with or for the Company, including but not limited to sexual harassment
in violation of the Company’s policies;
• Falsification of an employment application, time records or any Company record or
document;
• Theft or other dishonest conduct;
• Willfully or negligently misusing, damaging, defacing or destroying any property of the
Company or of any employee;
• Unauthorized disclosure of Company confidential information or that of a customer or
vendor;
• Involvement in situations considered to be a conflict of interest;
• Violation of Company’s drug and alcohol policy;
• Failure to follow safety rules or security regulations, or failure to report immediately to a
supervisor any accident or injury occurring on the job;
• Sale, use, purchase, possession or distribution of weapons, firearms, explosives or other
dangerous ordinances on Company’s property, during work hours, while engaged in the
Company activities, or in the Company vehicles, except where discipline is prohibited by
law;
• Threats of physical harm or assault of any employee;
• Engaging in verbal abuse, defamation, offensive language, horseplay or fighting or
otherwise failing to act professionally towards any employee, client, customers or other
persons performing services with or for Company;
• Any act of violence or violent conduct or threat of violence; or
• Inappropriate or unauthorized use of computers, cellular phones, PDAs, electronic mail,
office equipment, or any other Company property.
Of course, it is impossible to enumerate all the types of conduct that could result in disciplinary
action and the foregoing list is not exhaustive and is intended only to provide some examples of
unacceptable conduct. In addition, conduct that occurs off of Gravity property and/or during non-
work time may be the subject of discipline, including discharge, if it negatively affects or reasonably
could negatively affect the workplace or the employee’s ability to perform his or her job.
The principles underlying our employment policies are to protect employees from unreasonable
distractions and from fear of harm or loss while performing the duties of their jobs as well as to
protect the interests of the Company. In instances in which employees do engage in conduct
SUM : 000096 of 000099
contrary to these interests, such as conduct enumerated above, they will receive discipline, up to
and including discharge, appropriate for such misconduct. Depending on the nature of the infraction
and all of the surrounding circumstances, the Company may take whatever discipline it deems
appropriate, including discharge, even if lesser forms for discipline have not been attempted.
Gravity Diagnostics Employee Handbook

15
EXHIBIT G


CIVIL ACTION NO. 19-CI-1631
ELECTRONICALLY FILED
KEVIN BERLING PLAINTIFF
v.
GRAVITY DIAGNOSTICS, LLC DEFENDANT
AFFIDAVIT OF TED KNAUF
Ted Knauf, after being duly sworn, deposes and states as follows:
1. I am over the age of 18, capable of making this Affidavit, and have personal knowledge
of the facts set forth herein.
2. I am the Director of Business Operations for Gravity Diagnostics in Covington,
Kentucky.
3. On or about August 8, 2019, I was asked by Amy Blackburn to accompany her to a
meeting with Kevin Berling in a conference room at Gravity Diagnostics.
4. During the meeting, I observed Mr. Berling close his eyes, clench his fists, grind his
teeth, and become red in the face. He informed both Ms. Blackburn and me not to
speak with him and commanded silence.
5. In an effort to diffuse the situation, I asked Mr. Berling what I could do to help, and
he again clenched his fists and commanded silence.
6. I feared for my own safety and believed that Mr. Berling was going to punch or attack
me.
SUM : 000098 of 000099
7. Ms. Blackburn and I decided to escort Mr. Berling out of the building for safety
reasons.
4810-9399-7302.1 1
8. We took away Mr. Berling’s key FOB, escorted him out, and notified security that he

was not permitted to return to the building.
9. At no point during the meeting did Mr. Berling express that he was having panic
attack or anxiety.
Further the affiant sayeth naught.
18th
This the _________ August
day of _______________________, 2021.
____________________________________
Ted Knauf
COUNTY OF ______________________
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby
certify that Ted Knauf personally appeared before me this day and acknowledged the due execution
of the foregoing instrument.
Subscribed and sworn to before me on this the _____ day of _______________________,

2021, by ___________________________.
____________________________________
NOTARY PUBLIC
My commission expires:______________
SUM : 000099 of 000099
4810-9399-7302.1 2

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COMMONWEALTH OF KENTUCKY

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000001 of 000099

KEVIN BERLING PLAINTIFF

GRAVITY DIAGNOSTICS, LLC DEFENDANT

MOTION FOR SUMMARY JUDGMENT

an Entry of Summary Judgment on all of Plaintiff’s claims. A Memorandum in Support and

Proposed Order accompany this Motion.

/s/ Katherine L. Kennedy____________________

SUM : 000001 of 000099

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000002 of 000099

This lawsuit involves allegations of disability discrimination and retaliation. Plaintiff,

Kevin Berling (“Plaintiff”), is a former employee of Gravity Diagnostics, LLC. Gravity

physically threatened and unsafe in the workplace.

with family members. Id. at 57:9-11.

obtain a degree in neurobiology and is currently employed as a student worker at Northern

a job, or complete school work.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000003 of 000099

B. Plaintiff’s Birthday – August 7, 2019

In 2019, employees at Gravity Diagnostics typically celebrated their co-workers’ birthdays.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000004 of 000099

panic attack. Id. at 29:10-12.

however, Ms. Wimmers was working out of town. Id. at 29:21-25.

until lunchtime. Id. at 58: 5-6.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000005 of 000099

his behavior and to see if he was okay. Id. at 54:22-25; 55:1-3.

celebrated his birthday. Id. at 63:6-7.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000006 of 000099

remove themselves from the situation. Id. at 64:9-12.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000007 of 000099

a panic attack until after his termination. Id. at 55:9.

II. LAW AND ARGUMENT

denied a reasonable accommodation, and subjected to further discrimination by way of his

on all of Plaintiff’s claims.

This Motion is made pursuant to CR 56. The purpose of CR 56 is to expedite the

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000008 of 000099

B. Plaintiff Cannot Establish a Prima Facie Case for Disability

434 F.3d 357 (6th Cir. 2007).

Journal, 138 S.W.3d 699, 706 (Ky. App. 2004).

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000009 of 000099

An individual’s standing as disabled turns on whether the impairment substantially limits

“substantially” suggests “considerable” or “specified to a large degree.” Id. (quoting Sutton v.

(opinion attached as Ex. E.).

disability that can give rise to a disability discrimination claim.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000010 of 000099

currently employed and a student.

Next, to be substantially limiting, an impairment must do more than interfere with an

impairment” are all factors to be considered. Wagner’s Pharmacy, at *7 (2015).

Plaintiff’s daily life.

for disability discrimination fail as a matter of law. SUM : 000010 of 000099

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000011 of 000099

workers feel physically threatened or unsafe in the workplace. Id. at 54:6-8.

non-discriminatory reason for termination.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000012 of 000099

450 U.S. 428, at 256 (1980) (citations omitted).

fail as a matter of law.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000013 of 000099

nondiscriminatory adverse employment action.” Id.

0A4AD1EE-A805-4547-ACE7-6D7B5F6AF1E0 : 000014 of 000099