Equal Employment Opportunity Commission v. Peter's Bakery
Filing
37
ORDER GRANTING-IN-PART EEOC'S MOTION TO QUASH by Judge Paul S. Grewal granting-in-part 24 (psglc2, COURT STAFF) (Filed on 8/6/2014)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
United States District Court
For the Northern District of California
10
11
12
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
13
14
v.
PETERS’ BAKERY,
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART
EEOC’S MOTION TO QUASH
(Re: Docket No. 24)
Before the court is Plaintiff Equal Employment Opportunity Commission’s motion to
17
18
quash. 1 Defendant Peters’ Bakery opposes. Yesterday, the parties appeared for a hearing. 2 After
19
considering the arguments, the court GRANTS EEOC’s motion, but only IN-PART, as laid out
20
below.
21
22
23
24
25
1
26
27
28
See Docket No. 24. EEOC specifically moves to quash five to quash five document subpoenae
issued by Peters’ Bakery demanding: (1) the charge investigation files of Kim Alvernaz and (2)
Marcela Ramirez as well as (3) Ramirez’s psychotherapy, (4) medical and (5) medical billing
records. See Docket No. 25-1, Exs. A-E.
2
See Docket No. 36.
1
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
1
A.
The Charge Investigation Files of Kim Alvernaz and Marcela Ramirez
Peters’ Bakery does “not contest the motion to quash” the subpoenae of the Alvernaz and
2
3
Ramirez charge investigation files. 3 The charge investigation files therefore need not be produced.
4
B.
Ramirez’s Pyschotherapy Records
Under the federal psychotherapist-patient privilege, “confidential communications between
5
6
a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected
7
from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” 4 “Like other
8
testimonial privileges, the patient of course may waive the protection.” 5 The question before the
9
United States District Court
For the Northern District of California
10
11
12
court is whether Ramirez’s psychotherapist-patient privilege has been waived by the EEOC’s civil
case seeking recovery for emotional damages. The answer to that question, it turns out, is the
subject of considerable disagreement among the district courts.
13
Judge Spero explains the split:
14
In the wake of Jaffee, courts have struggled to determine the circumstances under which
waiver of the psychotherapist-patient privilege occurs. See Fitzgerald v. Cassill,
216 F.R.D. 632, 640 (N.D. Cal. 2003) (reviewing case law addressing waiver). Some
courts have taken a broad approach to waiver, finding, for example, that mere assertion of a
claim for emotional distress damages is enough to justify a finding of waiver. See id.
(citing Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Penn. 1997); Doe v. City of
Chula Vista, 196 F.R.D. 562 (S.D. Cal. 1999)). These cases focus on fairness
considerations. Id. Other courts have taken a narrow approach, holding that there must be
an affirmative reliance on the psychotherapist-patient communication before the privilege is
waived. See id. (citing Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997)).
These latter cases are based on the primacy of the privacy interest that is inherent in the
privilege. Id. Finally, some courts have taken a “limited broad view” in which they have
found waiver where a plaintiff has alleged more than “garden variety” emotional distress
and has instead alleged emotional distress that is “complex” or has resulted in specific
disorders. Id. at 637 (citing Weinstein’s Federal Evidence § 504 .07[8] & n.22.4). 6
15
16
17
18
19
20
21
22
23
24
25
3
See Docket No. 34 at 11 (“Defendant Peters’ Bakery will not contest the EEOC files of Marcela
Ramirez in this forum. The files produced during discovery are incomplete and Defendant will
pursue its Rule 34 remedy. With respect to the file of Kim Alvemaz, Defendant Peters' Bakery will
not contest the motion to quash that subpoena.”).
4
Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (footnote omitted).
5
Id. at 15 n.14.
26
27
6
28
Boyd v. City & Cnty. of San Francisco, Case No. 3:04-cv-05459-MMC-JCS, 2006 WL 1390423,
at *5 (N.D. Cal. May 18, 2006).
2
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
EEOC urges that Ramirez’s patient-psychotherapy privilege has not been waived. Some
1
2
courts evaluate the waiver of the psychotherapist-patient privilege under standards articulated
3
within Fed. R. Civ. P. 35(a). Rule 35 requires a showing that an issue is “in controversy” and there
4
is “good cause” for the discovery. 7 Any psychological or counseling records should only be
5
produced if Ramirez has placed her mental condition “in controversy.” 8 Bare allegations of mental
6
anguish, embarrassment and humiliation are insufficient. 9 Because (1) EEOC has not asserted a
7
8
9
separate claim for intentional or negligent infliction of emotional distress, (2) there is no claim for
a specific psychiatric injury or disorder, (3) there is no claim of unusually severe distress and (4) no
United States District Court
For the Northern District of California
10
mental health expert is expected to testify at trial, 10 EEOC concludes Ramirez’s mental condition is
11
not “in controversy” despite her prayer for damages related to emotional pain and suffering. 11
12
13
7
14
15
16
17
18
19
20
Fed. R. Civ. P. 35(a).
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental
or physical condition--including blood group--is in controversy to submit to a
physical or mental examination by a suitably licensed or certified examiner. The
court has the same authority to order a party to produce for examination a person
who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the
person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination,
as well as the person or persons who will perform it. (emphasis added).
8
21
22
See O’Sullivan v. State of Minnesota, 176 F.R.D. 325, 327 (D. Minn. 1997) (denying Rule 35
examination because plaintiff, who alleged emotional distress incident to employment
discrimination, had not put her mental condition “in controversy”).
9
23
24
25
See Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964) (concluding that the “in controversy”
and the “good cause” requirements of Rule 35, were not satisfied “by mere conclusory allegations
of the pleadings – nor by mere relevance to the case – but require an affirmative showing by the
movant that each condition as to which the examination is sought is really and genuinely in
controversy and that good cause exists for ordering each examination.).
10
26
27
28
The EEOC also relies on Fitzgerald v. Cassill to support the narrow view. 216 F.R.D. 632. The
Fitzgerald court adopted a narrow approach to waiver and concluded that because the plaintiffs
(1) did not allege “unusually severe emotional distress” or (2) intend to affirmatively rely on
communications between themselves and their health care providers, the psychotherapist/patient
privilege had not been waived and plaintiffs’ mental health records were not discoverable. Id. at
639. The court went on to note that while “the privilege may bar access to medical records, the
3
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
Peters’ Bakery disagrees. It cites Doe v. City of Chula Vista 12 and urges a more permissive
1
2
perspective of psychotherapist-patient waiver is warranted. The Chula Vista court also noted the
3
split in authority and the lack of appellate court guidance. The court concluded, however, that if
4
the Supreme Court were to take up the issue it would likely adopt the permissive take because,
5
although Congress declined to adopt the rule, the Supreme Court submitted a Proposed Supreme
6
7
8
9
Court Standard 504(b) on the parameters of the psychotherapist-patient privilege to Congress with
“exceptions to the privilege for conditions included in an element of a claim or defense.” 13 The
Chula Vista court explained that for the plaintiff to recover emotional damages against her
United States District Court
For the Northern District of California
10
employer, “Doe must prove that her employer’s conduct proximately caused her specific injury”
11
and thus “her emotional health, near the time of the Defendant’s conduct is an issue in the
12
litigation.” 14 At bottom, the “discovery process” must “be fair to both parties, so that each side is
13
able to present an effective and complete case to the jury.” 15
14
15
16
Defendant may cross-examine the Plaintiff about other stressors or contributing factors that may
explain or have contributed to the alleged emotional distress.” Id. at 638.
11
17
18
See Docket No. 1 at E (“Order Defendant to make whole Charging Party by providing
compensation for past and future nonpecuniary losses resulting from the unlawful practices
complained of above including, but not limited to emotional pain and suffering, inconvenience,
loss of enjoyment of life and humiliation, in amounts to be determined at trial.”).
19
12
20
13
21
22
23
24
25
26
27
28
196 F.R.D. 562 (S.D. Cal. 1999).
Id. at 565.
The Supreme Court had submitted a proposed Rule of Evidence on the
psychotherapist-patient privilege to Congress. Although Congress declined to adopt the
rule, the language of the proposed rule illuminates the Supreme Court’s vision of the
parameters of the privilege and the instances in which the privilege would be waived. The
general rule of privilege was the same announced in Jaffee, that is, the patient has the
privilege to refuse to disclose “confidential communications, made for the purpose of
diagnosis or treatment of his mental or emotional condition.” Proposed Supreme Court
Standard 504(b). The Court proposed exceptions to the privilege for conditions included in
an element of a claim or defense. Specifically, “[t]here is no privilege under this rule as to
communications relevant to an issue of the mental or emotional condition of the patient in
any proceeding in which he relies upon the condition as an element of his claim or
defense.” Id. 504(d)(3).
14
Id. at 568.
15
Id. at 569 (emphasis omitted).
4
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
Another recent district court opinion also bolsters Peters’ Bakery’s position: EEOC v.
1
2
California Psychiatric Transitions. 16 In that case, even though “no specific emotional injury was
3
alleged, or no claim of intentional infliction of emotional distress was made, the only remedy the
4
EEOC” sought on behalf of the plaintiff was for “emotional distress damages.” 17 Emotional
5
distress damages therefore constituted the “crux” of the plaintiff’s claim. 18 The court did not
6
7
8
permit the EEOC to seek recovery for emotional distress and “shield information related” to her
claim or otherwise “hide the details” of her injury. 19
Based on the record before the court, Peters’ Bakery has the better of the argument. The
9
United States District Court
For the Northern District of California
10
facts of this case track California Psychiatric Transitions: the only damages sought by the EEOC
11
are for emotional distress. Ramirez already has been financially compensated through a union
12
13
16
14
258 F.R.D. 391, 400 (E.D. Cal. 2009).
17
15
16
17
18
19
20
21
22
23
Id.
Given the facts of this case, the Court finds that the broad approach to the psychotherapist
privilege should apply. Although no specific emotional injury was alleged, or no claim of
intentional infliction of emotional distress was made, the only remedy the EEOC is seeking
on behalf of Plaintiff Kennedy is emotional distress damages resulting from the alleged
sexual harassment. Thus, the emotional distress damages is the crux of Plaintiff’s claim.
The fact that Ms. Kennedy is being treated for depression suggests that multiple causation
for her emotional distress may exist. The emotional distress she allegedly suffered as a
result of the sexual harassment could have been effected by her depression and vise versa.
Defendant should be able to determine whether Plaintiff’s emotional state may have been
effected by something other than Defendant’s alleged actions. “For each item of damages
. . . the plaintiff must show that the damage was proximately caused by the defendant’s
unlawful conduct. In turn, the [defendant] is entitled to show that other factors contributed
to the plaintiff’s damages.” Doe v. City of Chula Vista, 196 F.R.D. at 568 (S.D. Cal. 1999)
(citations omitted).
18
Id.
19
24
25
26
27
28
Sanchez v. U.S. Airways, Inc., 202 F.R.D. at 136.
To allow Plaintiffs to make a claim for emotional distress, but shield information related to
their claim, is similar to shielding other types of medical records. For instance, if the injury
at issue were to the knee, and Plaintiff had sustained a subsequent knee injury requiring
treatment, Plaintiffs would not be able to hide the details of the subsequent knee injury
because of privilege or privacy considerations. In order to allege and recover for a harm,
Plaintiffs need to show the existence and extent of the harm. The particular value of the
harm is best left to the fact-finder, after a careful view of the facts. The only way to
adequately review the facts is to bring to light relevant information.
5
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
1
arbitration for the loss of her job. Ramirez also has returned to her job. 20 EEOC now seeks
2
damages for stress and anxiety on behalf of Ramirez that were treated immediately after her
3
termination. To substantively evaluate the merits of the EEOC’s claims, Peters’ Bakery needs
4
access to Ramirez’s psychotherapy records. Because these records are at the heart of EEOC’s
5
theory of recovery, and the EEOC bears the burden to establish that the Ramirez’s privilege has not
6
been waived, 21 it would be inequitable to bar discovery on this issue.
7
As Judge Austin explained in California Psychiatric Transitions: “To protect the records
8
9
would allow Plaintiff to proceed with a claim on unequal terms. If the EEOC wants a jury to
United States District Court
For the Northern District of California
10
compensate Plaintiff for emotional distress, Defendant should be able to explore in discovery, other
11
circumstances that may have caused the injury. The [presiding judge] can be the gatekeeper of the
12
ultimate admissibility of the evidence through a Rule 403 balancing analysis at trial. 22 A protective
13
order, 23 and a direction that any of the disclosed material filed with the court must be done under
14
seal, will protect [Ms. Ramirez’s] privacy rights.” 24
15
Ramirez’s psychotherapy records shall be produced.
16
17
18
19
20
20
21
See Docket No. 32 at ¶ 7 (“At all times relevant, Charging Party Marcela Ramirez was a
unionized employee of Peters’ Bakery and through collective bargaining arbitration proceedings,
she was returned to work with full back pay and benefits[.]”).
21
22
23
24
See Stallworth v. Brollini, 288 F.R.D. 439, 443 (N.D. Cal. 2012) (explaining that the burden falls
on the party asserting the psychotherapist-patient privilege) (citing Fitzgerald v. Cassil,
216 F.R.D. 632, 636 (N.D. Cal. 2003)); cf. United States v. Martin, 278 F.3d 988, 999-1000
(9th Cir. 2002) (noting that burden is on party asserting attorney-client privilege to establish all
elements of privilege, which includes no waiver).
22
25
26
The undersigned’s decision that certain information is or is not discoverable stands separate and
apart from the presiding judge’s subsequent evaluation of admissibility of evidence at trial. That
decision remains for another day.
23
27
As previewed at the hearing, counsel shall meet and confer to work out a suitable protective
order in this case without delay.
28
24
California Psychiatric Transitions, 258 F.R.D. at 400 (internal footnote omitted).
6
Case No. 5:13-cv-04507-BLF-PSG
ORDER GRANTING-IN-PART EEOC’S MOTION TO QUASH
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?