Boadi v. Center for Human Development, Incorporated et al
Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER Regarding Defendant's 74 Motion for Rule 35(a) Psychological Examination. For the foregoing reasons, the Defendants' Rule 35 Motion is DENIED. See attached memorandum and order for complete details. (Calderon, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CENTER FOR HUMAN
and CANDY PENNINGTON
Civil Action No. 3:14-cv-30162-KAR
MEMORANDUM AND ORDER REGARDING
DEFENDANTS’ MOTION FOR RULE 35(a) PSYCHOLOGICAL EXAMINATION
(Dkt. No. 74)
Before the court is the motion of the defendants, Center for Human Development,
Incorporated (“CHD”), and Candy Pennington (collectively, “Defendants”), to compel a
psychological examination of the plaintiff, Grace Boadi (“Plaintiff”), pursuant to Federal Rule of
Civil Procedure 35(a) (Dkt. No. 74) (“Defendants’ Rule 35 Motion”). Plaintiff opposes the
motion (Dkt. No. 76). For the reasons set forth below, Defendants’ Rule 35 Motion is DENIED.
Plaintiff’s sole remaining claim in this case is that Defendants interfered with her rights
under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) by terminating her
employment in or around April 2013.1 Insofar as relevant to this motion, the facts may be briefly
As filed, Plaintiff’s complaint included claims of discrimination on the basis of disability under
the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq. and Massachusetts General Laws
ch. 151B (Dkt. No. 1). On summary judgment, the court ruled that the disability discrimination
summarized follows.2 In April 2013, Plaintiff was admitted to Pembroke Hospital, where she
was diagnosed with major depression with psychotic features, delusional disorder, conversion
disorder with seizures, and anxiety. She remained hospitalized for ten days. During his mother’s
hospitalization, Plaintiff’s son informed CHD that Plaintiff was hospitalized and could not work
her scheduled shifts. Plaintiff submitted relevant medical information to CHD in accordance
with CHD’s instructions. On or around April 26, 2013, following Plaintiff’s release from the
hospital, she provided CHD with a Certificate to Return to Work or School, signed by her health
care provider, indicating that she could return to “full duty” on May 24, 2013. Plaintiff’s
employment was purportedly terminated pursuant to CHD’s job abandonment policy because she
failed personally to communicate her absences to her supervisor.
Plaintiff has retained Frederick S. Kadushin, Ph.D., ABN as an expert. Dr. Kadushin
conducted two in-person clinical examinations of Plaintiff and certain neurological tests. In
addition to examining Plaintiff, Dr. Kadushin also interviewed Plaintiff’s son and reviewed
Plaintiff’s medical records, interrogatories, depositions, and other materials relevant to this case
(Dkt. No. 76-1 at 2-3). On the basis of his interviews with Plaintiff, record review, and other
information, Dr. Kadushin is prepared to opine on the following question:
Was Ms. Boadi capable of understanding and following CHD
company policies and procedures at any time during her hospital
stay in April 2013?
(Id. at 2).
claims, which remained pending when the defendants filed this motion, failed as a matter of law
(Dkt. No. 84). Defendants’ Rule 35 Motion was premised primarily, if not entirely, on the
disability discrimination claims. They had a much stronger argument for a Rule 35 examination
of Plaintiff when those claims were pending because Plaintiff intended to offer expert testimony
on the question of whether she was capable of performing the essential functions of her job (Dkt.
No. 76-1 at 23).
The facts stated are drawn from the Plaintiff’s complaint (Dkt. No. 1), the court’s
Memorandum of Decision and Order on Defendants’ Motion for Summary Judgment (Dkt. No.
57), and Plaintiff’s opposition to Defendants’ Rule 35 Motion (Dkt. No. 76).
Defendants’ motion to compel a psychological examination of Plaintiff is premised on
the ground that Plaintiff has placed her mental condition in controversy. Defendants have
retained the services of Dr. Albert M. Drukteinis to perform cognitive capacity screening and
psychological tests that were not performed by Dr. Kadushin as a basis for an opinion on
Plaintiff’s ability to perform the essential functions of her job in April and May 2013 and
thereafter (Dkt. No. 75).
Federal Rule of Civil Procedure 35(a) provides, in pertinent part, that a court may order
“a party whose mental or physical condition . . . is in controversy to submit to a physical or
mental examination by a suitably licensed or certified examiner . . . on motion for good cause.”
A party seeking to compel a Rule 35 examination must show that: (1) the party to be examined
has placed his or her mental condition “in controversy;” and (2) the party seeking the
examination has done so in good faith.3 Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964).
Schlagenhauf requires an affirmative showing by the moving party that the plaintiff’s condition
is genuinely in controversy and that good cause exists for ordering the specific examination
being requested. Id. at 119, 121.
In addition to the Schlagenhauf requirements, courts have identified the following five
factors that may warrant an order requiring a Rule 35 psychological examination:
(1) a cause of action for intentional or negligent infliction of emotional distress;
(2) an allegation of a specific mental or psychiatric injury or disorder; (3) a
claim of unusually severe emotional distress; (4) plaintiff's offer of expert
witness testimony to support a claim of emotional distress; and/or (5)
plaintiff's concession that his or her mental condition is “in controversy.”
Defendants’ good faith in seeking the examination is not in question.
Flores-Febus v. MVM, Inc., 299 F.R.D. 338, 340 (D.P.R. 2014) (citing Turner v. Imperial Stores,
161 F.R.D. 89, 95 (S.D. Cal. 1995) (compiling cases)). Defendants’ Rule 35 Motion fails at the
first stage of inquiry because Plaintiff has not placed her mental condition “in controversy” by
claiming that Defendants interfered with her FMLA rights.
Plaintiff’s Mental Condition is not in Controversy
A compelled Rule 35(a) mental status examination is intrusive and should not be ordered
as a matter of course. A so-called “garden variety” claim of emotional distress, for example,
does not justify an order requiring a Rule 35(a) examination. See, e.g., Flanagan v. Keller
Prods., Inc., No. 00-542-M, 2001 WL 1669379, at *2 (D.N.H. 2001) (“Because plaintiff’s case
involves a standard claim for mental anguish . . . defendant has not met its burden of
affirmatively establishing that plaintiff’s mental condition is in controversy.”). Defendants claim
that they are entitled to present expert testimony from Albert M. Drukteinis, Ph.D., on the issue
of whether Plaintiff could perform the essential functions of her job in April and May 2013 and
thereafter, and that Dr. Drukteinis should be permitted to conduct a mental examination of
Plaintiff in support of an opinion on this issue. Defendants rely on Franzen v. Ellis Corp., 543
F.3d 420 (7th Cir. 2008), and Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325
(1st Cir. 2005) (Dkt. No. 98 at 8) in support of this argument. For the following reasons, the
court disagrees with Defendants’ contentions.
As a general matter, the FMLA entitles an eligible employee to, inter alia, a total of 12
work weeks of leave, and to return to the same or a substantially similar position at the
conclusion of any FMLA-qualified leave. See Colburn, 429 F.3d at 330.
Claims for violations of substantive [FMLA] rights are brought under 29 U.S.C. §
2615(a)(1), which prohibits actions by ‘any employer to interfere with, restrain, or
deny the exercise of’ such rights.” See, e.g., Harrell v. U.S. Postal Serv., 415
F.3d 700, 706-07 (7th Cir. 2005); see also 7 N. Lareau et al., Labor and
Employment Law § 174.02 (2003). To meet his or her burden in an
interference with substantive rights claim, a plaintiff need only show, by a
preponderance of the evidence, entitlement to the disputed leave; no showing as
to employer intent is required. See Smith v. Diffee Ford-Lincoln-Mercury, Inc.,
298 F.3d 955, 960-61 (10th Cir. 2002); King v. Preferred Technical Group, 166
F.3d 887, 891 (7th Cir. 1999).
Id. at 331. The parties agree that Plaintiff’s only remaining claim in this case is an FMLA
In Colburn, the appeals court affirmed that Plaintiff was not entitled to any remedy on his
interference claim “because he admitted he could not return to work at the expiration of the
leave.” Id. at 334. Similarly, in Franzen, the appeals court affirmed the trial court’s conclusion
that the plaintiff had not shown that he was entitled to any damages because the evidence
established that the plaintiff “was unable to return to work at the end of the 12-week FMLA
period.” Franzen, 543 F.3d at 426. Because there was no genuine dispute that the plaintiff “was
either unwilling or unable to return to work at the expiration of his FMLA leave, [his employer]
lawfully could have terminated his employment, and he would not be entitled to damages
resulting from his termination.” Id. at 426.
In the present case, in contrast to the situations in the Colburn and Franzen cases,
Plaintiff tendered a fitness-for duty certification from her health care provider stating that she
could return to “full duty” on May 25, 2013, prior to the expiration of the 12-week FMLA leave
period. There is substantial other evidence indicating that she intended to return to work before
her entitlement to FMLA leave expired. As long as the employer has a uniform policy, it may
require all similarly situated employees to obtain and present certification from the employee’s
health care provider that the employee is fit to resume work. See 29 C.F.R. § 825.312.4 But,
“[n]o second or third opinion on a fitness-for-duty certification may be required.” Id. Under the
applicable regulations, had CHD not terminated Plaintiff’s employment, it would have been
required to accept Plaintiff’s care provider’s representation that she was fit to return to work and
could not have required an independent examination on the question of her fitness for duty.
Thus, in the present case, the question is not whether Plaintiff could perform the essential
functions of her job. Rather, the liability issues are whether Plaintiff was capable during her
hospitalization of complying with CHD’s policy requiring that she personally notify her
employer of her absence due to illness, and whether Plaintiff’s son provided sufficient
information to CHD such that CHD was on notice that plaintiff was suffering from a serious
health condition entitling her to FMLA leave and protection. Furthermore, under the FMLA,
Plaintiff cannot recover damages for emotional distress allegedly caused by the termination of
her employment. See Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 16 (1st Cir.
2012) (citing Nv. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 739-40 (2003)).
Turning to the factors set forth in Flores-Febus and other cases, Plaintiff has not asserted
a claim for negligent or intentional infliction of emotional distress; is not required to prove a
specific mental or psychiatric disorder in order to recover; is barred from asserting unusually
severe emotional distress as a basis for an award of damages; and will not offer expert testimony
to support a claim of emotional distress. See Flores-Febus, 299 F.R.D. at 340. Plaintiff’s mental
health status in April 2013 is a live issue because a factfinder will be required to decide whether
If an employer meets certain criteria, it may require an employee’s health care provider to
address whether the employee can perform the essential functions of his or her job. See 29
C.F.R. § 825.312(b). The defendants have not represented that CHD satisfied those criteria in
Plaintiff’s case. In any event, CHD terminated Plaintiff’s employment rather than addressing her
fitness to return to work.
Plaintiff was capable of complying with CHD’s call-in policy while she was hospitalized in April
2013. On this point, Defendants’ expert has access to Plaintiff’s medical records from that
period as part of the discovery. The court is not persuaded that personal examination and testing
conducted four years after the fact would provide a basis for a reliable expert opinion concerning
Plaintiff’s mental health impairments and capacities in April 2013. In any event, such an opinion
would not be significantly more reliable than an opinion based on a review of Plaintiff’s medical
records from the relevant time. In these circumstances, the court concludes that a Rule 35
examination is not warranted.
For the foregoing reasons, the Defendants’ Rule 35 Motion is DENIED.
It is so ordered.
Dated: May 31, 2017
/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE
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?