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Gay Worker’s Evaluation Was Biased, He Says

SACRAMENTO, Calif. (CN) - Relying on the diagnosis of a doctor who promotes gay-conversion therapy, a California agency lashed out at an openly gay worker, the man claims in court.

Nicholas Berger sued the California Air Resources Board, or CARB, claiming that it subjected him "to a 'fit for duty' examination because he is gay" and then attempted to retire him "through disability because of his sexual orientation."

Berger began working for CARB in 2001 as an air pollution specialist, and annual reviews showed that he always met or exceeded employment expectations, according to the complaint in Superior Court.

When Berger, who is openly gay, began working within a new division of CARB in late 2011, he allegedly encountered anti-gay sentiments from his co-workers, identified in the complaint as Mr. V., Mr. Y., Ms. A., and Mr. P. The co-workers are not named as defendants.

Among other things, the co-workers mimicked gay speech and gestures, whispered and gossiped about Berger, and made disapproving faces at Berger, according to the complaint. Berger says he endured months of such "bullying" before emailing Mr. V. a request that he stop creating a hostile work environment.

Instead of complying with the request, Mr. V. filed a complaint with CARB's Human Resource Department, claiming that he felt threatened by Berger's email, according to the complaint. Rather than perform an investigation into Berger's concerns, CARB allegedly placed Berger on paid leave of absence in April 2012 pending an investigation into Mr. V.'s allegations.

Berger says he had to submit to a "fitness for duty" evaluation with Dr. Benjamin Kaufman before he could return to work.

Kaufman, a co-founder of the National Association for Research and Therapy of Homosexuality (NARTH), is "a proponent and active participant in conversion therapy and believes 'behind every homosexual person or gay person is a heterosexual person that has not emerged,'" according to the complaint.

Though Kaufman cleared Berger for work that same month, his return was marked by "a campaign of retaliatory conduct" in which other staffers systematically filed complaints against him to CARB, according to the lawsuit. Among other things, the complaints allegedly concerned the ringtone on Berger's cellphone, his loud voice, his arm gestures, the way he made mental notes to himself out loud in his cubicle, and that he whispered Christian prayers to himself.

The co-workers "also complained that Mr. Berger did not walk normal, did not act normal, talked about weird stuff and generally did not behave like a normal heterosexual member of society," Berger states in the suit.

These complaints prompted a second evaluation by Dr. Kaufman, despite the fact that Berger's performance evaluations indicated that he was meeting his employer's expectations, he says.

This time, Kaufman found Berger mentally unfit to perform his job, according to the complaint. Berger says the opinion stemmed from the fact that he is gay.

Kaufman allegedly opined that Berger required psychotropic medication and psychiatric care.

Berger says CARB "ignored Dr. Kaufman's publically known association with NARTH and biases against homosexual individuals and adopted Dr. Kaufman's analysis that Mr. Berger was mentally unfit to perform the essential functions of his job with the intent to humiliate and discriminate against Mr. Berger because of his sexual orientation."

Another psychiatrist Berger saw independently found him to be mentally well and not in need of medication or ongoing clinical treatment, according to the suit.

Kaufman's diagnosis allegedly led CARB to institute an employer's application for disability retirement through CalPERS."

Berger says he was subjected to the "fit for duty" examination and the subsequent attempts to have him retire based on his sexual orientation.

He seeks general and special damages for sexual orientation discrimination and retaliation.

Berger is represented by Natalia Asbill with Perkins & Associates.

A spokeswoman for CARB could not immediately comment on the lawsuit.

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