Butler v. State of Louisiana, Louisiana Department of Safety and Corrections et al

Filing 22

ORDER: For the reasons given, IT IS ORDERED that defendants' Motion to Compel [rec. doc. 11] is DENIED. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/29/2013. (JSL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SCOTT BUTLER

CIVIL ACTION

VERSUS

NO. 3:12-cv-00420-BAJ-RLB

STATE OF LOUISIANA DEPARTMENT
OF PUBLIC SAFETY AND
CORRECTIONS, et al

ORDER

Before the Court is Defendants’ Motion to Compel (“Motion”) responses to Interrogatory
No. 7 and Request for Production Nos. 5 and 7, filed on November 12, 2012. (R. Doc. 11).
Plaintiff filed a Memorandum in Opposition (“Opposition”) on November 24, 2012. (R. Doc.
12). Oral argument was held on April 30, 2013 (R. Doc. 18). For the reasons discussed below,
Defendants’ Motion is DENIED.
I.

BACKGROUND
In this action, Plaintiff alleges that Defendants regarded him as disabled in violation of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112(a), 12102(1)(C), by requiring
him to submit to an excessive psychiatric fitness-for-duty evaluation, denying him overtime
opportunities and placing him on involuntary leave. 1 (R. Doc. 9 at ¶ 5). According to Plaintiff,

1

Additionally, Plaintiff alleges that Defendants regarded him as disabled by: (1) assigning him to desk
duty; (2) extending his orientation period upon his return to patrol; (3) overly scrutinizing and monitoring his
behavior; (4) subjecting him to a hostile work environment; and (5) preventing him from working overtime. (R.
Doc. 9 at ¶¶ 5, 15-21). Plaintiff also alleges harassment under the ADA. Plaintiff asserts identical claims under both

Defendants based their decisions on perceived impairments—obsessive compulsive disorder and
“germaphobia.” (R. Doc. 9 at ¶ 11). Plaintiff also claims that Defendants’ decision to place him
on involuntary leave violated the Family and Medical Leave Act, 29 U.S.C. § 2561(a)(1). (R.
Doc. 9 at ¶ 10). Finally, Plaintiff claims that Defendants’ conduct deprived him of his
constitutional right to equal protection and that his right to privacy was violated when
Defendants submitted him for psychiatric evaluation and later disclosed information relevant to
his evaluation to non-privileged employees. 2 (R. Doc. 9 at ¶¶ 5, 9, 12).
In their Answer, Defendants deny that they regarded Plaintiff as disabled and claim that
“Plaintiff posed a direct threat to the health and safety of others in the workplace based on his
behavior and the inherently dangerous nature of law enforcement.” (R. Doc. 3 at 2). Defendants
also assert that their employment decisions were based on legitimate nondiscriminatory reasons.
(R. Doc. 3 at 2).
On August 6, 2012, Defendants propounded their first set of discovery requests,
consisting of requests for interrogatories and production of documents. (R. Doc. 11-3). Plaintiff
responded to the requests on October 4, 2012, raising objections to Defendants’ Interrogatory
No. 7 and Request for Production Nos. 5 and 7:
INTERROGATORY NO. 7:
Identify each and every medical provider that treated you for any psychiatric
problems, including counselors and psychologists, in the last 10 years.
ANSWER TO INTERROGATORY NO. 7:
Plaintiff objects to this interrogatory on grounds that it is not relevant to any claim
or defense. He is not seeking damages for emotional distress.

the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Louisiana’s Employment Discrimination Law, La. R.S.
23:303(C).
2

For purposes of the instant motion, the elements of Plaintiff’s constitutional claims do not warrant a
separate analysis as they are covered under the analysis of his ADA and FMLA claims.

2

REQUEST FOR PRODUCTION NO. 5:
Please produce certified copies of any and all medical records and reports of any
and all healthcare providers, including but not limited to, hospital records, doctor,
chiropractor, physical therapy, psychological and counseling records, reports,
notes charts and bills pertaining to you alleges injuries and/or treatment or
examination of the injuries and/or treatment or examination of the injuries alleged
by you as a result of the incident described in your Complaint.
ANSWER TO REQUEST FOR PRODUCTION NO. 5:
Plaintiff does not claim physical injury or emotional injury. He objects to this
request on grounds that it seeks information not relevant.
REQUEST FOR PRODUCTION NO. 7:
Please produce the attached duly executed and fully completed Authorization for
Release of Protected Health Information.
ANSWER TO REQUEST FOR PRODUCTION NO. 7:
Plaintiff objects to the request for production of health information. Protected
health information is not relevant to his claim for damages or to any defenses.
(R. Doc. 11-4 at 5, 12). Following Plaintiff’s objections, Defendants moved this Court to compel
responses, arguing that Plaintiff’s psychiatric records are relevant and necessary components of
Plaintiff’s causes of action and their defenses. (R. Doc. 11). Oral Argument was held on April
30, 2013. (R. Doc. 18).
During oral argument, counsel for both parties provided the Court with information
regarding the psychiatric medical information/evaluations considered by Defendants to
determine Plaintiff’s fitness for duty in February of 2011. (R. Doc. 19 at 1). According to
Defendants’ counsel, Defendants received medical information from three medical providers.
First, Department of Public Safety and Corrections psychologist, Dr. Cary Rostow, evaluated
Plaintiff and provided Defendants with his medical report on or about February 8, 2011. (R. Doc.
20 at 3). Second, Plaintiff’s nurse practitioner, Theresa Stewart, APRN, CNS, submitted a
document to Defendants explaining Plaintiff’s fitness for duty. (R. Doc. 20 at 1). Third,
3

Plaintiff’s treating psychiatrist, Dr. James Patterson, provided his medical evaluation to
Defendants, dated February 10, 2011. (R. Doc. 20 at 11). Defendants’ counsel explained that
these three documents account for the medical information known to Defendants at the relevant
time period—between November 2010 and March 2011. (R. Doc. 19 at 1-2). These documents
were submitted under seal, at the Court’s request. (R. Doc. 19).
II.

LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows a party to “obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.” A relevant
discovery request seeks information that is “either admissible is reasonably calculated to lead to
the discovery of admissible evidence.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894
F.2d 1482, 1484 (5th Cir. 1990) (quoting Fed. R. Civ. P. 26(b)(1)) (alterations in original).
Nonetheless, a party may withhold otherwise discoverable information on the basis of privilege.
Fed. R. Civ. P. 26(b)(1).
Federal common law recognizes a psychotherapist-patient privilege protecting the
communications between a patient and a licensed psychotherapist made during the course of
treatment. Jaffe v. Redmond, 518 U.S. 1, 15 (1996) (“confidential communications between a
licensed psychotherapist and her patients in the course of diagnosis or treatment are protected
from compelled disclosure”) (citations omitted). Privileged information falls outside of the
scope of discovery, absent a waiver. Jaffe, 518 U.S. at 15 n. 14.
Courts have held that the privilege is waived by the patient in certain circumstances. See
Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (citing cases). The most common of
these circumstances is where the patient has placed his mental condition at issue. Schoffstall,
223 F.3d at 823.

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III.

DISCUSSION
Defendants seek disclosure of Mr. Butler’s psychiatric records within the past ten years

and his medical records pertaining to any injuries alleged in his Complaint. (Defs.’ Req. for
Interrog. No. 7, R. Doc. 11-3 at 3; Defs.’ Req. for Produc. No. 5, R. Doc. 11-3 at 8). Defendants
additionally ask the Court to compel Plaintiff’s execution of an “Authorization for Release of
Protected Health Information.” (Defs.’ Req. for Produc. No. 7, R. Doc. 11-3 at 8). In their
Motion to Compel, Defendants clarify that they seek production of Plaintiff’s psychiatric records
only. (R. Doc. 11 at 1). Even if the records are relevant, because these records fall within the
psychotherapist-patient privilege, the records are not subject to production without waiver. Jaffe,
518 U.S. at 15 n.14.
If the Court determines, however, that proof of the elements of Plaintiff’s causes of action
requires the use of the privileged material, then the Court is proper to conclude that the
psychotherapist-patient has been waived. Analysis therefore turns to the elements (and defenses)
of those causes of action.
A.

Americans with Disabilities Act

The ADA makes it unlawful for an employer to discriminate against “a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie violation
of the ADA, a plaintiff must show that he or she was (1) disabled within the meaning of the
ADA, (2) qualified for the position, and (3) subjected to an adverse employment action because
of his or her disability. Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998). 3 If
the plaintiff meets these requirements, a presumption of discrimination arises which the
defendant must then rebut by articulating a legitimate nondiscriminatory reason. Bodenheimer v.
3

Whether Plaintiff suffered an adverse employment action “because of his disability” is not part of the
Court’s analysis because the parties have not alleged that his medical records are at issue to establish whether
Defendants’ acted with discriminatory intent.

5

PPG Indus. Inc., 5 F.3d 955, 957 (5th Cir. 1993). Additionally, the defendant may be relieved of
liability for the “den[ial] of a job or benefit,” that would otherwise violate the Act, by showing
the plaintiff posed a direct threat. 42 U.S.C. § 12113(a)-(b).
i.

Regarded As Disabled

A plaintiff may be disabled in one or more of three ways—having an actual disability,
having a record of a disability or being regarded as disabled. 42 U.S.C. § 12102(1)(A)-(C).
Here, Plaintiff alleges that he was regarded as disabled in violation of the ADA. (R. Doc. 9 at 3).
Defendants deny this allegation and argue that “[i]f [Plaintiff] has an impairment that is
substantially limiting, [Plaintiff] cannot be regarded as disabled under the ADA.” (R. Doc. 11-1
at 4). For that reason, Defendants argue that Plaintiff has waived the psychotherapist-patient
privilege because his medical records are “centrally relevant as to whether he could be regarded
as disabled.” (R. Doc. 11-1 at 4). Plaintiff opposes the records request as privileged and
irrelevant. (R. Doc. 12 at 7, 15).
The Court agrees with Plaintiff. As a matter of law, an individual who is actually disabled
can, at the same time, be regarded as disabled under the ADA. 42 U.S.C. § 12102(3)(A). In fact,
the ADA was amended in 2008 to clarify the intended function of the regarded as prong—that it
be used by individuals, like Mr. Butler, who are “not challenging a covered entity's failure to
make reasonable accommodations.” 29 C.F.R. § 1630.2(g)(3). After the 2008 amendments, an
individual is regarded as disabled if he or she was (1) “subjected to an action prohibited under”
the ADA, (2) because of “an actual or perceived” impairment regardless of whether the
impairment is, or is perceived to be, substantially limiting. 42 U.S.C. § 12102(3)(A).
Contrary to Defendants’ argument, the ADA’s Regulations further explain that whether
an individual is actually disabled “is not relevant to coverage under . . . the ‘regarded as’ prong.”

6

29 C.F.R. § 1630.2(j)(2). Plaintiff is clear that he is only proceeding under the “regarded as”
prong. Plaintiff also explained that he does not intend to present medical evidence “beyond [the]
information known to the [Defendants] at the time” of the alleged adverse employment actions.
As such, Plaintiff has not waived the privilege because he did not place his mental health “at
issue” by claiming he was regarded as disabled. See Ruhlmann v. Ulster Cnty. Dep’t of Soc.
Servs., 194 F.R.D. 445, 448 (N.D.N.Y. 2000) (“defendants[] need not explore plaintiff’s
psychiatric history in order to defend against an allegation of perceived disability . . . [T]he
finding that plaintiff waived his psychotherapist-patient privilege by asserting a perceiveddisability ADA claim is clearly erroneous and contrary to law.”).
ii.

Qualified Individual

In addition to showing he is “disabled” within the confines of the ADA, Plaintiff must
also establish that he is qualified to perform the functions of a Louisiana State Trooper. See 42
U.S.C. § 12111(8). The ADA defines “qualified individual” as someone “who, with or without a
reasonable accommodation, can perform the essential functions of the employment position.” 42
U.S.C. § 12111(8). Plaintiff asserts that he is qualified to perform the essential functions of the
job and that his medical records are irrelevant to establish this element. (R. Doc. 12 at 21).
Rather, Plaintiff argues that his past job performance and evaluations are the best evidence of his
qualifications. (R. Doc. 12 at 21). Defendants, however, allege that Plaintiff is not qualified to
perform his job safely, without posing a direct threat to himself or others. (R. Doc. 11-1 at 4).
Defendants argue that “Plaintiff’s psychiatric condition is the principal factual issue which is
probative of whether the Plaintiff has a condition that renders him unable to perform the essential
functions of his job, i.e. a disability under the ADA.” (R. Doc. 11-1 at 2). For that reason,
Defendants contend that Plaintiff’s psychiatric records will further legitimize and highlight the

7

reasonableness of their concerns about Plaintiff’s ability to perform his job. (R. Doc. 11-1 at 45).
The Court is not persuaded by Defendants’ argument. Being “disabled” and “qualified”
are not antithetical; both may actually be necessary elements of an ADA claim. See, e.g., 42
U.S.C. § 12112(8) (defining the term “qualified individual with a disability”); Picard v. St.
Tammany Parish Hosp., 423 Fed. Appx. 467, 469 (5th Cir. 2011) (“The ADA protects qualified
individuals with disabilities from discrimination.”). The plaintiff bears the burden of proving he
is qualified to perform the essential functions of the position. Kapche v. City of San Antonio, 176
F.3d 840, 842 (5th Cir. 1999). At oral argument, Plaintiff clarified that he intends to offer his
past performance evaluations as evidence that he can perform the job’s essential functions. More
importantly, Plaintiff explained that he did not intend to offer medical information.
While the Court makes no finding of whether Plaintiff is qualified, the Court notes that
evidence of past performance is a recognized method of proving an individual is qualified under
the ADA. See, e.g., EEOC v. E.I. DuPont de Nemours, 480 F.3d 724, 731 (5th Cir. 2007)
(plaintiff’s eighteen years of performing the job indicated her qualification for the position);
McAlpin v. Nat’l Semiconductor Corp., 921 F.Supp. 1518 (N.D. Tex. 1996) (plant worker could
use his ten years of past performance to establish he was qualified). Because Plaintiff does not
intend to present ancillary medical information, the requested medical records are irrelevant to
this element of Plaintiff’s prima facie case. And so, Plaintiff has not placed the requested
medical records at issue.
iii.

Legitimate Nondiscriminatory Reason

A defendant’s intermediate burden of establishing a legitimate nondiscriminatory reason
serves “to frame the ultimate factual issue of discrimination . . . with sufficient clarity.” Turner v.

8

Kan. City S. Ry. Co., 675 F.3d 887, 901 (5th Cir. 2012) (quoting Tx. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 (1981) (alterations in original)). 4 In a disparate treatment claim,
“the ultimate issue is the employer’s reasoning at the moment the questioned employment
decision is made, [thus] a justification that could not have motivated the employer’s decision is
not evidence that tends to illuminate the ultimate issue and is therefore simply irrelevant.”
Patrick v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004) (citing Price Waterhouse v. Hopkins, 490
U.S. 228, 252 (1989) (courts should conduct a snapshot inquiry into the employer’s motive at the
exact instant the decision was made)); see also Perez v. Tx. Dep’t of Criminal Justice, Inst. Div.,
395 F.3d 206, 210 (5th Cir. 2004) (“The evidence relevant to determining whether [defendant
discriminated against plaintiff] is evidence that goes to what [defendant] knew at the time
[defendant] . . . recommended [plaintiff’s] termination.”).
Defendants deny violating the ADA and argue that their employment decisions were
legitimate and nondiscriminatory because they were based on Plaintiff’s “bizarre” and “unusual”
behavior. Defendants compel disclosure of Plaintiff’s psychiatric records to legitimize their
safety concerns because “[t]he records will most likely show that Butler, in fact, suffered from a
psychiatric condition.” (R. Doc. 11-1 at 4). Plaintiff alleges, among other things, Defendants’
fitness for duty evaluation was an illegal medical inquiry and/or adverse employment action,

4

The Court applies the burden-shifting framework originally established by the Supreme Court in
McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 802-03 (1973), a disparate treatment claim brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Because the McDonnell Douglas framework is
applicable to alleged violations of Title VII, the ADA and the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621, et seq., the Court relies on relevant cases decided under all three statutes. See, e.g., Turner v. Kan.
City S. Ry., 675 F.3d at 891-92 (applying McDonnell Douglas to Title VII); McInnis v. Alamo Cmty. Coll. Dist., 207
F.3d 276, 279 (5th Cir. 2000) (applying McDonnell Douglas to an ADA claim); Jackson v. Cal-Western Packaging
Corp., 602 F.3d 374, 378 (5th Cir. 2010) (“While the Supreme Court has not definitively resolved whether it is, we
are bound by our circuit precedent applying McDonnell Douglas to age discrimination cases.”) (citing Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009) (“[T]he Court has not definitively decided whether the evidentiary
framework of McDonnell Douglas utilized in Title VII cases is appropriate in the ADEA context.”) (internal
citations omitted)).

9

prohibited by the ADA. 42 U.S.C. § 12112(d)(4)(b). 5 Plaintiff argues that the legitimacy of
Defendants’ conduct is not determined by the existence of an actual disability. (R. Doc. 12 at 1516). Instead, the legitimacy of an employer’s conduct depends upon whether the circumstances
and facts, existing at the time of the adverse action, could justify the employer’s “concern about
the employee’s ability to do his job.” (R. Doc. 12 at 16). In this case, Defendants ordered
Plaintiff to undergo a mental health examination to assess his fitness for duty. Defendants later
used the evaluation’s results to determine whether Plaintiff posed a direct threat, as discussed in
the following section. 6
The ADA permits an employer to “require a medical examination (and/or inquiry) of an
employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c)
(allowing “inquiries into the ability of an employee to perform job-related functions.”). To show
Plaintiff’s psychiatric evaluation complied with the ADA, Defendants must demonstrate they had
reason to believe Plaintiff could not safely perform the job prior to the evaluation. See, e.g.,
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir.1999) (“for an employer's request
for an exam to be upheld, there must be significant evidence that could cause a reasonable person
to inquire as to whether an employee is still capable of performing his job”); Brownfield v. City
of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2011) (“the business necessity standard may be met
before an employee's work performance declines if the employer is faced with ‘significant
evidence that could cause a reasonable person to inquire as to whether an employee is still

5

It may violate the ADA to “require a medical examination of an employee or to make inquiries as to
whether an employee is an individual with a disability or as to the nature or severity of such disability.” 29 C.F.R. §
1630.13(b).
6

The Court first analyzes Defendants’ legitimate non-discriminatory reason for its initial decision to send
Plaintiff for a psychiatric evaluation because it is separate and distinct from Defendants’ affirmative defense of
direct threat.

10

capable of performing his job . . . [T]here must be genuine reason to doubt whether that
employee can perform job-related functions.”).
According to Defendants, they based their decisions off of Plaintiff’s behavior.
However, Defendants now seek additional records that are subject to the psychotherapist-patient
privilege to seemingly justify the reasons given for their previous employment actions.
To establish their given reason for the evaluation, Defendants must present evidence of
the actual behavior exhibited by Plaintiff and observed by Defendants. 7 Defendants’
argument—that Plaintiff’s “records will show that Butler, in fact, suffered from a psychiatric
condition,”—is misguided. (R. Doc. 11-1 at 4). Plaintiff might be diagnosed with a mental
impairment. Plaintiff might have also communicated with his doctor about his behavior. 8
However, the fact that the diagnosis exists does nothing to illuminate the actual behavior
observed by Defendants that raised doubts about Plaintiff’s qualifications.
Any records Defendants could obtain at this time could not have motivated Defendants’
decisions at the moment they were made. As such, Plaintiff’s medical records are not relevant
nor are they “reasonably likely to lead to the discovery of admissible evidence,” as they relate to
this particular defense. Fed. R. Civ. P. 26(b). For those reasons, they are not at issue and
Plaintiff has not waived the psychotherapist-patient privilege.
iv.

Direct Threat

Defendants argue that Plaintiff’s medical records are relevant to establish that he cannot
safely perform the essential functions of patrolman, and by extension, poses a direct threat. (R.
7

Defendants’ legitimate nondiscriminatory reason pertains not only to Plaintiff’s alleged unlawful
psychiatric evaluation/medical inquiry, but also to his claims of involuntary leave, prolonged orientation, increased
monitoring, denial of overtime work and desk duty.
8

Defendant alleged at oral argument that Plaintiff may have made contrary remarks to his psychiatrist
when compared to other statements. Presumably, the fact of inconsistent statements could be used to cross examine
Plaintiff and are therefore relevant. Simply because Defendant may be able to establish relevancy, however, does
not mean the privilege has been waived.

11

Doc. 11-1 at 3). Under the ADA, an employer is relieved of liability for the “den[ial] of a job or
benefit,” that would otherwise violate the Act, by showing the employee posed a direct threat. 42
U.S.C. § 12113(a)-(b). The statute defines “direct threat,” as a “significant risk to the health or
safety of others that cannot be eliminated by a reasonable accommodation.” 42 U.S.C. §
12111(3). The ADA requires employers to conduct an individualized assessment of the
[employee's] present ability to safely perform the essential functions of the job.” 29 C.F.R. §
1630.2(r). The employer’s determination that an employee poses a significant risk to health or
safety must be based on “a reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r); see also
Kapche, 403 F.3d at 498 (“individualized assessment is required under the direct threat inquiry”).
If the employee does pose a significant risk, to avail itself of the defense, the employer must
show that the risk could not be reduced or eliminated by a reasonable accommodation. 29 C.F.R.
§ 1630.2(r). “Before excluding an individual from employment as a direct threat,” an employer
must engage in an interactive process with the employee to determine the availability of an
effective accommodation that would reduce or eliminate the treat.” Echazabal v. Chevron USA,
336 F.3d 1023, 1028 (9th Cir. 2003) (citing 29 C.F.R. § 1630.9); see also EEOC v. E.I. DuPont
de Nemours & Co., 406 F. Supp. 2d 645, 652 (E.D. La. 2005), aff’d in part, rev’d in part on
other grounds, 480 F.3d 724 (5th Cir. 2007) (defendant has ultimate burden of proving direct
threat, including proving that any threat could not be eliminated by reasonable accommodation).
Under the direct threat defense, an otherwise qualified employee—someone capable of
performing the job's essential functions—becomes effectively unqualified by his inability to
safely perform the essential functions of the job. See Sch. Bd. of Nassau County v. Arline, 480
U.S. 273, 276, 284, 287 (1987) (because plaintiff performed the essential functions of the job for

12

over ten years, she is unqualified because of her tuberculosis upon a showing of direct threat);
EEOC v. Exxon, 203 F.3d 871, 874 (5th Cir. 2000) (direct threat is applicable when an employer
“impose[s] a safety standard in an individual’s particular case separate from the general
qualification standards required for the position”). For that reason, the defense is applied where
an employee or applicant has been “den[ied] a job or benefit,” as unqualified. 42 U.S.C. §
12113(a).
To establish its affirmative defense, Defendants must show they conducted an
individualized assessment, based on “a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. §
1630.2(r). As the parties explained to the Court during oral argument, the three evaluations from
Dr. Rostow, Dr. Patterson and NP Stewart account for the medical knowledge known to
Defendants at the time of the alleged adverse actions. (R. Doc. 19 at 1-2). The medical records
that Defendants now wish to obtain were obviously unknown to Defendants at the time when
they allege Plaintiff posed a direct threat. Therefore, the records “could not have motivated the
employer’s decision [and are] not evidence that tends to illuminate the ultimate issue,” and by
extension, are not at issue in this litigation. Patrick, 394 F.3d at 319.
B.

Family and Medical Leave Act

The Court now examines a more difficult issue—whether Plaintiff put his medical
condition “at issue” by bringing a claim under the FMLA. 29 U.S.C. § 2615(a). The FMLA
provides eligible employees with 12 weeks of job protected leave per year for “a serious health
condition that makes the employee unable to perform the functions of the position.” 29 U.S.C. §
2612(a)(1)(D). Among other things, the FMLA prohibits an employer from “interfer[ing] with,
restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under

13

[the Act].” 29 U.S.C. § 2615(a). Here, Plaintiff has brought an “involuntary leave claim,”
alleging Defendants forced him “to use leave when he had no condition that required the use of
leave.” (R. Doc. 9 at 7).
Plaintiff’s involuntary leave claim “defies the conventional pattern.” Willis v. Coca Cola
Enterprises, Inc., 445 F.3d 413, 417 (5th Cir. 2006) (examining what constitutes involuntary
leave and what are the parties rights and obligations). Plaintiff does not allege that he later
sought leave but was denied because Defendants previously forced him on involuntary leave.
Rather, Plaintiff alleges that Defendants placed him on leave when he did not have a serious
health condition. (R. Doc. 9 at 7). At oral argument, Defendants explained that Plaintiff was
placed on involuntary leave pending the results of his fitness for duty evaluation and that he was
returned to work after his treating physician, Dr. Patterson, declared him fit for duty. Defendants
argue that Plaintiff’s medical records are at issue because he must establish that he did not have a
serious health condition at the time Defendants placed him on leave. (R. Doc. 11-1 at 6).
Plaintiff argues that Defendants “cannot use after-acquired [medical] evidence to justify forcing
[him] to use Family Medical Leave.” (R. Doc. 12 at 23).
An FMLA involuntary leave claim is considered a type of interference claim prohibited
under Section 2615(a). Some courts have stated that a plaintiff may have an involuntary leave
claim when the employer forces the plaintiff to take leave despite not having a qualifying serious
health condition under the FMLA. Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007)
(explaining the elements of a cause of action for involuntary leave). However, the claim does
not ripen until the plaintiff “seeks FMLA leave at a later date, and such leave is not available
because the [plaintiff] was wrongfully forced to use FMLA leave in the past.” Wysong, 503 F.3d
at 449.

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There is nothing in the record to indicate that the plaintiff sought leave on a later date but
it was unavailable because he was forced to improperly use it here. As such, the Court notes that
Plaintiff’s cause of action (and the elements and defenses that the Court must consider) is not
clear. The Fifth Circuit, as well as the MDLA District Court, has previously noted that forced or
involuntary leave is not, in and of itself, actionable under the FMLA. See Willis, 445 F.3d at 417
(noting “it is not contrary to the FMLA for an employee to be placed on ‘involuntary FMLA
leave.”); Moss v. Formosa Plastics Corp., 99 F. Supp. 2d 737, 741 (M.D. La. 2000) (“Nothing in
the statute prevents the employer from requiring an employee to take this leave, if the statutory
conditions are otherwise met.”); Heyne v. HGI-Lakeside, Inc., 589 F. Supp. 2d 1119, 1128 (S.D.
Iowa 2008) (same). Therefore, the elements of Plaintiff’s claim are uncertain. The Court looks
to treatment in analogous cases regarding involuntary leave in order to determine whether
Plaintiff’s medical records are at issue.
In Willis v. Coca Cola Enterprises, Inc. the Fifth Circuit considered “what constitutes
involuntary FMLA leave and what are the parties' rights and obligations pursuant to this type of
leave.” 445 F.3d at 417. In that case, the Court focused on the information that was made
available to the employer in making the decision to put the employee on leave. Relying on “the
statutory language of the FMLA and the relevant caselaw from [its] sister circuits” the court held
that, “even in the case of involuntary leave . . . the employee [must] provide [the employer with]
notice of a ‘serious health condition.’” 445 F.3d at 418-19 (citing 29 C.F.R. § 825.112(a)(4)).
Thus, the FMLA is not implicated until “the employee has provided sufficient information to
‘allow the employer to determine that the leave qualifies under the Act,’” despite which party
initiates the leave. Id. at 419 (quoting 29 C.F.R. § 825.208(a)(1) (current version at 29 C.F.R. §
825.301(b)).

15

The emphasis Willis places on the information available to the employer for purposes of
determining notice of a serious health condition at the time of leave is consistent with the
procedural rights granted to employers by the FMLA. The Act allows an employer “who doubts
the validity of a medical certification” to require the employee seeking leave to obtain a second
or third medical opinion. 29 C.F.R. § 825.307(b)-(c). This procedural right affirmatively places
a responsibility on the employer to seek additional medical information at the time of leave. 29
C.F.R. § 825.301(a) (“where the employer does not have sufficient information about the reason
for an employee's use of leave, the employer should inquire further of the employee”). The
FMLA also charges the employer with designating the leave as FMLA qualifying. 29 C.F.R. §
825.301(a) (“employer's decision to designate leave as FMLA–qualifying must be based only on
information received from the employee or the employee's spokesperson”). For that reason, this
Circuit’s previous interpretations of the FMLA’s notice requirements explain: “The critical
question is whether the information imparted to the employer is sufficient to reasonably apprise
it of the employee's request to take time off for a serious health condition.” Manuel v. Westlake
Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).
As these courts have noted, it is the sufficiency of the information made available to the
employer that controls. If Defendants needed more information to determine whether Plaintiff
was appropriate for FMLA leave, they should have requested that information at that time.
The Court, however, makes no finding of whether Plaintiff has alleged a viable cause of
action under the FMLA. That being said, considering the parties’ rights and obligations under
the Act and this Circuit’s interpretation of them, the Court finds the relevant inquiry is limited to
the information made available to Defendants at the time of leave. 9 As it pertains to this cause of

9

If the Court were to determine that the facts of this case constitute a waiver of the psychiatric-patient
privilege, then employers could simply force any employee to take involuntary leave for simply suspecting the

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action, Plaintiff has not placed his medical condition at issue as to constitute a waiver of the
psychotherapist-patient privilege.
C.

Plaintiff’s Witness

Plaintiff has listed Dr. Patterson, his treating physician as a witness in his initial
disclosures. (R. Doc. 11-5 at 1, 3). Defendants argue that by listing Dr. Patterson as a witness,
Plaintiff has waived his psychotherapist-patient privilege. (R. Doc. 11-1 at 2). Plaintiff asserts
that he does not intend to call Dr. Patterson to testify as an expert and only listed him as a
witness to the extent Dr. Patterson will be necessary to verify the authenticity of his evaluation
that was made available to, and used by, Defendants in making the challenged employment
decisions. (R. Doc. 12 at 19). The Court finds that because Plaintiff does not intend to call Dr.
Patterson for any purpose, other than verification of a document, he has not waived his
psychotherapist-patient privilege.
D.

Emotional Injuries

Defendants’ Request for Production No. 5 seeks medical records pertaining to any
emotional distress or injury resulting from the allegations in his Complaint. (R. Doc. 11-3 at 8).
Plaintiff objects to the request because he does not seek damages for emotional distress. (R. Doc.
12 at 19). After reviewing Plaintiff’s Petition (R. Doc. 1-2), First Amended Petition (R. Doc. 12), and Second Amended Complaint (R. Doc. 9), it is correct that Plaintiff does not assert any
claim for emotional damages. As such, Plaintiff has not placed his psychiatric records at issue as
it relates to a claim of damages for emotional distress. Doe v. City of Chula Vista, 196 F.R.D.
562, 565-66 (S.D. Cal. 1999) (“It is the patient who decides whether to file a lawsuit claiming

employee of receiving any mental health treatment and then force them to reveal the substance of that treatment in
litigation. Whether the employer had evidence of a serious health condition or not would be immaterial – as urged
by Defendants, for the employee to challenge this action would require him to waive his privilege in every situation.

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emotional distress damages, and she has the control over the scope of the litigation, and
consequently, the scope of her privilege.”)
E.

Medical Release Authorization

Defendants have requested that Plaintiff execute a medical release authorizing them to
obtain an unlimited amount of his medical records. (R. Doc. 11-3 at 8). Not only is this request
likely to produce copious amounts irrelevant and highly privileged information, “Rule 34 does
not permit a party, or the court, to compel another party to sign a [medical] release.” E.E.O.C. v.
Resources for Human Development, No. 10-03322, 2011 WL 3841066, at *1 (E.D. La. Aug. 31,
2011) (recognizing that “[a]lmost 30 years ago, the Fifth Circuit indicated that a plaintiff could
not be compelled to sign a blank authorization form that was attached to interrogatories” but in
dicta suggested that Rule 34 might, under limited circumstances, give courts the authority to
“compel the plaintiff to do so.” Id. at *1-2) (quoting McKnight v. Blanchard, 667 F.2d 477, 482
(5th Cir. 1982)); see also Klugel v. Clough, 252 F.R.D. 53, 54–55 (D. D.C. 2008) (same); Neal v.
Boulder, 142 F.R.D. 325, 327 (D. Colo. 1992) (same). As set forth above, the Court does not
find that Defendants are entitled to any evidence that the release would allow them to obtain as it
would all be either irrelevant or privileged. The Court will not compel Plaintiff to execute an
authorization releasing his medical information within the confines of the Federal Rules of Civil
Procedure.

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IV.

CONCLUSION
For the reasons given above, IT IS ORDERED that Defendants’ Motion to Compel (R.

Doc. 11) is DENIED.
Signed in Baton Rouge, Louisiana, on May 29, 2013.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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